Volume 2002Masthead PDF
Private Ordering of Public Markets: The Rating Agency Paradox
Steven L. Schwarcz | 2002 U. Ill. L. Rev.
In this article, Professor Schwarcz examines the role of rating "agencies" in ordering financial markets in the United States and abroad. Though rating agencies are largely unregulated private entities, they significantly influence the global economic system. Recent international proposals regarding the determination of capital adequacy guidelines for the banking industry call for an even greater role for rating agencies. In this light, Professor Schwarcz queries whether market forces provide sufficient restraint on rating agencies or whether public sector regulation is warranted. In the latter case, he also asks whether it is feasible for individual nations to regulate multinational entities of this type.
The article initially addresses the functions, origin and terminology of rating agencies. Through the development and nearly universal acceptance of ratings, investors are able to assess the risk attendant to investments in public and privately issued debt securities. The article then addresses the issue of regulation, focusing on the competing regulatory goals of efficiency and distributional interests. Concluding that any regulation of rating agencies should be largely rooted in efficiency concerns, Professor Schwarcz posits that regulation could increase efficiency by either bolstering rating agency performance or mitigating negative consequences of rating agency misbehavior.
Professor Schwarcz contends that regulation would not increase efficiency. Rating agency costs are not excessive, nor would increased regulation result in greater ratings reliability. Rating agencies are already motivated to provide accurate and efficient ratings because their profitability is directly tied to reputation. Conversely, additional regulation could possibly subject ratings to political manipulation, thereby impairing ratings reliability.
The article also rejects the contention that regulation would mitigate any negative consequences of rating agency misbehavior. Although the practice of requiring issuers to pay for a rating raises a potential conflict of interest, Professor Schwarcz argues that the risk of misbehavior is minimal and is largely deterred by the potential impact on reputation costs. He also argues that reputation can be a substitute for regulation, and that, at least for rating agencies, reputation drives much of the accountability that ordinarily is achieved through the democratic process.
Regulation of rating agencies is also unlikely to resolve their traditionally conservative bias against innovative new financial structures. Government regulation may in fact increase the bias by reducing competition among rating agencies. Moreover, given the international nature of rating agencies and the fact that their assets are human capital, regulation by individual nations could drive rating agencies to relocate to foreign nations that do not impose regulation. Professor Schwarcz concludes that public regulation of rating agencies is an unnecessary and potentially costly policy option.
*Professor of Law, Duke Law School; Faculty Director, Duke Global Capital Markets Center; Professor (Adjunct) of Business Administration, Fuqua School of Business.
New Article 9 of the UCC: The Good, the Bad, and the Ugly
Jean Wegman Burns | 2002 U. Ill. L. Rev.
In 1998, the Drafting Committee of the American Law Institute approved significant changes to Article 9 of the Uniform Commercial Code, which deals with secured transactions. In this light-hearted but thorough and insightful piece, Professor Burns takes us on a journey through new Article 9. The article begins with a discussion of "the good": modifications that made clear improvements to the Code. Next, the article focuses on "the bad": traps for the unwary lying beneath the thicket in new Article 9. Finally, the article points out "the ugly": the seemingly impenetrable provisions of new Article 9 drafted in non-English. In "The Good, the Bad, and the Ugly," Professor Burns provides critical direction and guidance to those forced to navigate the rugged terrain of new Article 9. In addition, there is a healthy dose of good humor, making the journey all the more endurable.
*Professor of Law, Brigham Young University Law School.
Patterns of Drafting Errors in the Uniform Commercial Code and How Courts Should Respond to Them
Gregory E. Maggs | 2002 U. Ill. L. Rev.
The following article, developed from the personal notes of Professor Gregory E. Maggs, identifies eight recurring patterns of drafting in the Uniform Commercial Code (UCC). For each of these patterns, and for other idiosyncratic errors, the article recommends specific judicial responses. These responses take advantage of many of the UCC's unique characteristics. While the problem of drafting errors in the UCC may seem minor in light of the model code's high overall quality, the suggested responses can lead to a more efficient and effective application of the statute.
*Professor of Law, George Washington University Law School.
The Invisible Patient
Barbara A. Noah | 2002 U. Ill. L. Rev.
BOOK REVIEW: Sally Satel, How Political Correctness Is Corrupting Medicine (New York: Basic Books 2000).
*Research Associate and Lecturer, Health Law & Policy, University of Florida College of Law; Lecturer (Adjunct), University of Florida College of Law and Medicine; J.D. 1990, Harvard Law School.
Let Us Pray?: The Constitutionality of Student- Led Graduation Prayer After Sante Fe v. Doe
Matthew A. Bills | 2002 U. Ill. L. Rev.
The proper role of prayer in public schools is a divisive issue that continually challenges our courts to rethink the meaning of the First Amendment. The Supreme Court has offered some guidance to school officials and lower courts, but many open questions still remain. This note analyzes whether student-led, student-initiated prayer at public school graduation ceremonies is constitutional. Drawing on the Supreme Court's various Establishment Clause Tests and Santa Fe Independent School District v. Doe, the recent Supreme Court decision evaluating student-led prayer at a public school football game, the author concludes that two representative school policies addressing student-led, student-initiated prayer at graduation are unconstitutional. The author makes two suggestions to schools and students about how a student may deliver a religious message at a graduation ceremony without offending the Constitution.
Minding the Neighbor's Business: Just How Far Can Condominium Owners' Associations Go in Deciding Who Can Move into the Building
David E. Grassmick | 2002 U. Ill. L. Rev.
Condominium owners' associations impose a variety of restrictions on owners, regulating things from pets to children to color schemes in interior decorating. The right of owners' associations to regulate aesthetics and behavior is recognized and accepted; however, the practice of controlling membership in condominium communities by restricting leasing and alienation of units is more controversial.
In this note, the author argues that the right of an owners' association to regulate a building's architecture, parking, and landscaping differs substantially from an alleged right to regulate who may live in a building or community, and that the latter should be disfavored as a matter of public policy.
The Transformation of the U.S. Financial Services Industry, 1975-2000: Competition, Consolidation, and Increased Risks
Arthur E. Wilmarth, Jr. | 2002 U. Ill. L. Rev.
The structure of the U.S. financial services industry has changed dramatically during the past quarter century. Large banks, securities firms, and life insurers have pursued aggressive expansion strategies by merging with direct competitors as well as firms in other financial sectors. The Gramm-Leach-Bliley Act of 1999 has encouraged this consolidation trend by authorizing the creation of financial holding companies that engage in a full range of banking securities, and insurance activities. The Act’s proponents have claimed that these new “financial supermarkets” will produce favorable economies of scale and scope, offer convenient “one-stop shopping” to customers, and achieve a safer diversification of risks.
In contrast, Professor Wilmarth contends that the motivations for a probable outcome of financial conglomeration are very different. In his view, managers of large, diversified financial firms have sought growth to build personal empires, to increase market power, and to secure membership in the exclusive club of “too big to fail” institutions. By virtue of their too big to fail status, major financial conglomerates are largely insulated from market discipline and regulatory oversight, and they have perverse incentives to take excessive risks at the expense of the federal “safety net.” Based on past experience, the new financial megafirms are likely to encounter diseconomies of scale and scope, shrinking profit margins, increased customer dissatisfaction, and greater vulnerability to sudden disruptions in the financial markets. In addition, the federal government will feel compelled to support these risky behemoths during economic crises. Professor Wilmarth calls for fundamental reforms to our system of financial regulation because current regulatory approaches cannot control the potential risks associated with financial conglomeration.
*Professor of Law at George Washington University Law School. B.A. Yale University; J.D. Harvard University.
Public Opinion and the Culture Wars: The Case of School Vouchers
Robert K. Vischer | 2002 U. Ill. L. Rev.
BOOK REVIEW: Terry Moe, Schools, Vouchers, and the American Public (2001).
*The author, a former associate at Kirkland & Ellis, will join St. John’s University Law School as an Assistant Professor beginning in the 2002–2003 academic year.
Surety Bad Faith: Tort Recovery for Breach of a Construction Performance Bond
Aron J. Frakes | 2002 U. Ill. L. Rev.
This note examines tort recovery for breaches of performance bonds. In the construction industry, it is customary for the construction project owner to require the contractor to secure a performance bond. A performance bond is a contract in which the bonding company guarantees to the project owner that the contractor will faithfully fulfill its obligations under the construction contract. The author argues that the construction project owner should not be allowed to recover damages in a tort action for a breach of the covenant of good faith and fair dealing, which is implied in a construction performance bond.
The note begins by discussing how recovery for a breach of contract is traditionally limited to damages arising from the breach itself, not for a surety’s breach of the covenant of good faith and fair dealing. Next, the author provides a background, detailing the development of allowing tort recovery for the breach of the covenant of good faith and fair dealing. Finally, the note analyzes the policies in favor of and against allowing tort recovery for a surety’s bad faith.
The author asserts that courts should not allow a project owner to receive tort damages against a surety. Instead, courts should limit a project owner’s recovery against a surety to traditional contractual remedies. Due to the nature of the construction industry and the fact that the surety is more of a third-party in the construction project, tort recovery is inappropriate.
The "Safety Valve" Provision: Should the Government Get an Automatic Shut-Off Valve?
Jeffrey J. Shebesta | 2002 U. Ill. L. Rev.
In this note the author identifies and analyzes a split in the federal circuit courts over section 5C1.2 in the United States Sentencing Guidelines. The Guidelines offer defendants relief from mandatory minimum sentences if the defendants satisfy the requirements of section 5C1.2, the safety valve provision. Courts have interpreted the requirements for safety valve relief differently.
Specifically, the circuits disagree about whether a defendant who lies to the police before finally making a complete and truthful statement as required by the provision is eligible for safety valve relief. The First and Seventh Circuits disqualify defendants once they make false statements to the police. Even if a defendant in these circuits ultimately makes a complete and truthful statement within the required time frame, no safety valve sentence reduction is available to them. In contrast, the Second, Eighth and Ninth Circuits adopt a plain meaning interpretation and consider only whether the defendant makes a complete and truthful statement before the statutory deadline. Prior false statements do not disqualify defendants in these circuits. The author examines weaknesses in the first interpretation and suggests that the plain meaning interpretation is more aligned with accepted principles of statutory interpretation and the purpose of the safety valve provision.
An End to Judicial Overreaching in Nationwide Service of Process Cases: Statutory Authorization to Bring Supplemental Personal Jurisdiction Within Federal Courts' Powers
Jason A. Yonan | 2002 U. Ill. L. Rev.
Supplemental jurisdiction is a concept usually associated with federal subject matter jurisdiction. When federal courts are presented with claims for which Congress has granted nationwide service of process, they often take the opportunity to exert supplemental personal jurisdiction as well. The Supreme Court, however, has never decided whether this practice is constitutional.
This note will assess the cogency of using personal jurisdiction, created by nationwide service of process, to support supplemental personal jurisdiction. Additionally, this note will analyze the concerns that result from the granting of supplemental personal jurisdiction without congressional authorization. The author will examine nationwide service of process from a historical point of view and delineate Congress’s response to this evolving history through legislation. Finally, this note will explore due process implications along with the question of whether statutory authority exists to support supplemental personal jurisdiction. The author will arrive at the conclusion that the power to create supplemental personal jurisdiction belongs only to Congress and should not be exercised by courts.
The New Jurisprudence of the Necessary and Proper Clause
J. Randy Beck | 2002 U. Ill. L. Rev.
Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.
The article begins with an historical overview of the Framers’ understanding of the Necessary and Proper Clause, leading up to the Supreme Court’s decision in McCulloch v. Maryland. The Court’s decision in McCulloch, through Chief Justice Marshall, laid the groundwork for our modern understanding of the clause. An historical account of the Necessary and Proper Clause demonstrates that the “propriety” limitation is best understood as requiring an appropriate relationship between congressional ends and means. The propriety requirement should not be understood to provide textual support for free-standing principles of federalism, such as state sovereign immunity or the prohibition against commandeering of state officials. Thus, the article concludes that the Court’s reliance on the propriety limitation in Printz v. United States and Alden v. Maine was misplaced. These decisions must be justified, if at all, on the structural and historical arguments employed by the Court. At the same time, in two recent commerce-power decisions, United States v. Lopez and United States v. Morrison, the Court failed to invoke the Necessary and Proper Clause where the propriety limitation was exactly apposite, and supported the Court’s analysis. Constitutional doctrine will benefit from this historical account of the Necessary and Proper Clause, as it highlights the modern implications of Chief Justice Marshall’s understanding of the judicially enforceable limitations on congressional power.
*Assistant Professor, University of Georgia School of Law.
Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law
Naomi Cahn | 2002 U. Ill. L. Rev.
The article examines the nature of marriage and the expectations of husbands and wives in nineteenth-century America by analyzing trial reports of famous nineteenth-century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefited women; if they were the innocent spouse who had taken care of the children, the household, and their husbands, then they were protected in divorce proceedings. Nineteenth-century ideology strongly supported this gendered role of both women and wives, and there was a significant overlap between gendered and marital roles.
By the late twentieth century, those very same actions of gender conformity had very different consequences. In the nineteenth century, a woman’s highest calling was to act as a wife; this is no longer true. While gender roles and expectations, together with domestic relations laws, are changing, the realities of most women’s lives do not yet accord with these changes. Instead, the social norms for marital roles diverge from the legal norms embodied by divorce law. Examining nineteenth-century divorce illustrates the confining nature of these congruent legal and social norms, but also illustrates how contemporary divorce law has become separated from these norms. Although divorce law should not return to fault or reinforcing confining gender roles, it should respect the diverse roles of men and women within marriage. This examination of nineteenth-century divorce shows the relationship between gender roles and domestic relations law, but also shows how social norms and legal norms can reinforce, or conflict, with each other.
*Professor of Law, George Washington University Law School.
Single-Sex Education: Promoting Equality or an Unconstitutional Divide?
Kristen J. Cerven | 2002 U. Ill. L. Rev.
The United States Supreme Court has examined the constitutionality of single-sex public schools in the context of higher education on two occasions, finding both times that the institutions at issue violated the Equal Protection Clause of the Fourteenth Amendment. The standard of review applicable to gender classifications such as that involved in single-sex education is “intermediate scrutiny,” which requires the State to articulate an important governmental objective, and to show that the single-sex program is substantially related to achieving that objective. In light of this standard, the author examines the constitutionality of several modern day single-sex public elementary and secondary schools across the United States, and provides recommendations as to how those institutions may be able to survive any future constitutional challenges.
"The Sheriff Knows Who the Troublemakers Are. Just Let Him Round Them Up": Chicago's New Gang Loitering Ordinance
Ernesto Palomo | 2002 U. Ill. L. Rev.
This note examines Chicago’s Gang Congregation Ordinance. By enacting the ordinance, Chicago intended to allow its police force to reduce gang activity in designated “hot spots” by giving police the authority to command gang members to disperse whenever congregated on the streets for the purpose of establishing “control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.”
The author has two arguments. First, he argues that the ordinance is unconstitutionally vague because it does not place any limits on the police’s discretion in enforcing the ordinance. Second, even if the ordinance is not unconstitutionally vague, it violates public policy.
The note begins by detailing the history of loitering, noting that antiloitering laws and policies were traditionally used to discriminate against “society’s undesirables.” Next, the note changes its focus to the current trend of “order-maintenance policing,” a popular method of maintaining order to eliminate and reduce criminal activity. The author asserts that this policy is the underlying rationale for the ordinance. By not allowing gang members to congregate, the ordinance hopes to reduce instances of violence and other criminal activity. Part II of the note also includes an analysis of Chicago’s earlier gang loitering ordinances.
Part III examines and rebuts the arguments of supporters of the loitering ordinance. Finally, the author rebuts the proponents by finding that it allows the police to abuse their discretion by not requiring an overt act for its enforcement. The author also argues that the ordinance is ineffective in reducing gang activity. Instead, the author argues that the gang problem would be best addressed by encouraging communities to form partnerships with the police, investing money in youth programs, and aggressively enforcing current laws.
A Brewing Debate: Alcohol Direct Shipment Laws and the Twenty-First Amendment
Matthew J. Patterson | 2002 U. Ill. L. Rev.
Alcohol direct shipment laws exist in many forms. In some cases, these laws prohibit out-of-state producers and retailers from shipping alcohol directly to in-state consumers. In other instances, such laws allow alcohol to be shipped directly to consumers from producers and retailers in another state as long as a reciprocity agreement exists. While proponents of alcohol direct shipment laws cite underage drinking and tax evasion as reasons to keep these laws intact, opponents believe that states have no legitimate regulatory interest in the stream of intrastate alcohol.
At the center of this dispute is the Twenty-first Amendment, which assures that alcohol transportation or importation into any state will not occur in contravention of the laws of that state. As a result of this assurance, a debate has raged over whether state laws governing the intrastate flow of alcohol are exempt from the ambit of the Commerce Clause.
In this note, the author will examine the history of alcohol regulation in the United States and analyze Twenty-first Amendment jurisprudence. This note will then argue that a disassembling of state-sanctioned alcohol distribution plans is not backed by the Twenty-first Amendment or the history encompassing its passage. Finally, the note will argue that striking down alcohol direct shipment laws would produce a national alcohol market, which would be in conflict with the Twenty-first Amendment.
“Although all Americans are guaranteed certain inalienable rights such as life, liberty and the pursuit of happiness, access to wine is not one of them.”
Symposium: Empirical and Experimental Methods in Law
Tribute to Gary T. Schwartz
The future of empirical scholarship in the legal academy will hinge on the nature and level of exchange between traditional and empirically minded scholars, and on the academy’s reaction to the exchange. In this article, Professor Diamond describes the range of legal research that can be characterized as empirical, and illustrates the interconnectedness of empirical and nonempirical research. She next offers a typology that de-scribes how three general categories of scholars view empirical research, and the different forms that their interactions with empirical scholarship can take. She then explains how shifts in category occupancy within the typology are likely to affect both the quality of empirical research on law and the future of empiricism in the legal academy.
The Past, Present, and Future of Empirical Legal Scholarship
Michael Heise | 2002 U. Ill. L. Rev. 819
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Over the last century, empirical legal scholarship has joined the ranks of the mainstream within the legal academy. In this article, Professor Heise traces the history of legal empiricism and discusses its growing role within the legal academy. First, the article traces legal empiricism through the twentieth century from the legal empiricism movement of the early twentieth century, to post–World War II efforts to revive legal empiricism, including the Chicago Jury Project and large-scale foundational support for empirical legal research, through current support for legal empirical research from both the law schools and other research centers. The article then discusses several factors which have influenced the recent growth in legal empirical research including: the increasing breadth and maturity of legal scholarship overall, an increase in collaborative research by law professors, a growing number of available datasets and sophisticated computational tools for statistical analysis, and an increasing call for empirical research from the bench. Next, the article uses empirical judicial decision-making literature to illustrate current trends in empirical legal research, including the two predominant research models of behaviorism and attitudinalism, and developing research in the areas of the legal, public choice, and institutionalism models for explaining judicial decision making. Finally, the article discusses some of the inherent limitations of current research methodologies and available databases, but concludes that structural limitations aside, empirical legal scholarship has arrived as a research genre and will continue to flourish.
Three Objections to the Use of Empiricism in Criminal Law and Procedure-And Three Answers
Tracey L. Meares | 2002 U. Ill. L. Rev. 851
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Recent studies show that, over the past decade, judges and lawyers have begun to cite to empirical studies in their work with increasing regularity. However, the use of empiricism is still not common in many areas of the law. In this article, Tracey L. Meares draws on her background in criminal justice to highlight three major objections to the use of empiricism in criminal law and procedure: (1) much of the empirical evidence used by courts is flawed and courts are not equipped to deal with complicated social scientific data; (2) the use of empiricism decreases public acceptance in the criminal justice system, which in turn, prevents an individual from internalizing legal rules (“less information is better”); and (3) empirical information is irrelevant to the normative goals of criminal law and procedure. After fully analyzing these objections, the author presents various counterarguments that underscore the importance of using empiricism in the creation and interpretation of criminal law and procedure.
Professor Meares dismisses the first critique as merely an objection to bad social science and argues for the use of critical review as one of the mechanisms by which courts could screen social science research. The author responds to the “less information is better” objection by attacking it on moral grounds and by demonstrating how the use of empirical evi-dence can lead to higher levels of legitimacy and to greater compliance with the law. Finally, the author disposes of the third objection by argu-ing that the use of empirical studies makes criminal justice decisions more transparent and allows us to hold decision makers accountable for their actions.
Will there ever be a Nobel Prize in law? Professor Ulen uses this question as a framework for discussing the current state of legal scholar-ship and the trend toward making legal scholarship more “scientific.” First, Professor Ulen discusses the meaning of “science” and the scien-tific method, and summarizes the various theories that have developed over time to verify, modify, or reject scientific paradigms. Next, he con-siders whether or not the study of law is a science. All sciences share core theoretical beliefs that allow for the international study and dissem-ination of scientific information, and that will produce similar results, re-gardless of where they are applied. These theories are then examined and tested using empirical research. Although law has no such set of core theoretical beliefs, there is a growing body of empirical research in the law. Professor Ulen believes that interest in empiricism is growing in the legal academy, and that empirical research can be very beneficial to both legal academics and practitioners. As the amount and breadth of legal empirical research increases, Professor Ulen posits that a core set of theoretical beliefs will emerge in the law, and that increased empiri-cism in the law is vital to the future of the law as a science.
The emerging field of experimental economics uses human experi-ments to answer research and policy questions. This article discusses the methodology used in economics experiments, describes what experiments can tell the legal researcher and practitioner, and provides examples of economics experiments as used in legal settings. Additionally, the article provides some guidelines for conducting economics experiments and ad-dresses the ways that these experiments differ from the more familiar psy-chological experiments.
Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appel-late outcome, including case complexity, case type, amount in controver-sy, and whether there had been a judge or a jury trial. Once they ac-counted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants’ advantage exists probably because of appellate judges’ misperceptions that trial lev-el adjudicators are pro-plaintiff.
Professor Harcourt develops and advocates a method to more rig-orously measure and evaluate how qualitative “social meaning” variables relate to legal practices and public policies. The method integrates in-depth qualitative interviews with an experimental free associational component, map analysis of the interviews, and a methodology, correspondence analysis, that remains little known in the United States despite its acceptance in other parts of the world. Correspondence analysis, according to Professor Harcourt, is a tool that allows researchers to visual-ly represent the relationship between structures of social meaning and the contexts and practices within which they are embedded. This method opens up structures of meaning in a more accessible and rigorous way than was previously possible, and can significantly aid in the analysis of legal and public policy. Professor Harcourt uses his own research, fo-cusing on the social meanings of guns to youth, as an example of how correspondence analysis works. Using this method, Professor Harcourt extracts and graphically represents meanings from interviews of thirty incarcerated male youths and analyzes the policy implications of his findings.
Professor Picker contemplates his own agent-based computer simulation game—SimLaw 2011. He uses this vehicle to describe how “organized decision making” may differ substantially from individualized decision making. The simulations are available on the Internet, and the article is best read with access to a computer. Then he analyzes the consequences that organized decision making may have on future decisions made by our biggest organization—the government.
Empirical Scholarship in Contract Law: Possibilities and Pitfalls
Russell Korobkin | 2002 U. Ill. L. Rev. 1033
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Professor Korobkin examines and analyzes empirical contract law schol-arship over the last fifteen years in an attempt to guide scholars concern-ing how empiricism can be used in and enhance the study of contract law. After defining the parameters of the study, Professor Korobkin categorizes empirical contract law scholarship by both the source of data and main purpose of the investigation. He then describes and analyzes three types of criticisms that can be made of empirical scholarship, explains how these criticisms pertain to contract law scholarship, and considers what steps researchers can take to minimize the force of such criticisms.
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Empirical research has been used to study many areas of law, including administrative law. In this article Professor Coglianese discusses the current and future role of empirical research in understanding and im-proving administrative rulemaking. Criticism of government regulation and calls for regulatory reform have grown in the last few decades. Em-pirical research is a valuable tool for designing reforms that will truly improve the effectiveness, efficiency, and legitimacy of regulatory gov-ernance. Specifically, Professor Coglianese discusses three areas of ad-ministrative law that have benefited from empirical research—economic review of new regulations, judicial review of agency rulemaking, and ne-gotiated rulemaking.
Agencies are now required to perform a cost-benefit analysis of all major regulations. Those analyses themselves are empirical in nature, and fur-ther empirical research has been conducted to examine what effect these analyses have on the rulemaking process. Judicial review has also bene-fited from empirical research, and would benefit from still further such research. Scholars debate whether judicial review improves governance or ossifies agencies due to fear of potential judicial challenges. Despite the widespread belief that agencies are retreating from rulemaking, the empirical evidence is actually more mixed, with few agency rules ever re-versed due to judicial review. Finally, negotiated rulemaking is meant to avoid litigation and speed up the rulemaking process, yet the empirical research to date shows that negotiated rules take as long to develop as nonnegotiated rules, and are challenged more often than nonnegotiated rules. Overall, empirical research on how procedures affect administra-tive agencies is vital to improving administrative law in ways that will contribute to more effective and legitimate governance.
Public choice theory has been used to explain a wide range of observable facts. It has also been influential in legal scholarship. In Part I of this article, Tom Ginsburg reviews the main premises behind public choice theory and discusses how these premises have fared when tested empiri-cally. In this section, for example, the author discusses how casual em-pirical observation of the “free rider” problem suggests that individuals do not always seek to maximize their own self-interest. The author fur-ther points out that additional studies, like Ostrom’s empirical observa-tions of a Turkish fishery, are necessary in order to explain why individu-als cooperate and contribute to public goods—and why they do not.
In Part II, the author considers a revised theory of collective action with different implications for the prospect of democratic government. The re-vised theory models society as made up of three characters: (1) pure ra-tional actors, (2) conditional cooperators, and (3) willing punishers. This model is more consistent with observed behavior than earlier public choice theories and enables researchers to focus on specific problems that would otherwise be difficult to examine. The author goes on to discuss the normative implications of public choice theory and concludes with a discussion of the role of positive and normative theories in law and social science.
Statistical and Economic Approaches to Legal History
Daniel Klerman | 2002 U. Ill. L. Rev. 1167
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Professor Klerman advocates increased use of economic and statis-tical approaches by legal historians. He documents the dearth of eco-nomic and statistical analysis in legal history and shows how use of these methods could contribute to the field. Professor Klerman shows these potential benefits by examining recent articles which use economics and statistics to explore the determinants and effects of legal change.
The Illinois Agricultural Cooperative Act: The Possibility of and Procedure for Denying the Voting Rights of Stockholders
Adam J. Hermann | 2002 U. Ill. L. Rev. 1177
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The Illinois Agricultural Cooperative Act (ACA) governs agricultural co-operative associations organized in Illinois. The Act incorporates by ref-erence all of the provisions of the Illinois Business Corporation Act of 1983 (BCA) that are not in conflict with the ACA. One provision of the BCA allows a corporation to limit or deny the voting rights of its share-holders if the corporation’s articles of incorporation so provide. Whether this particular provision is in conflict with the ACA, and hence whether agricultural cooperative associations organized under the ACA may limit or deny the voting rights of their shareholders, is a debatable question.
The resolution of this question will determine whether an agricultural co-operative organized under the ACA can go forward with a cooperative business action when an insufficient number of affirmative votes in favor of the action would prevent it from occurring despite the absence of op-position to the action. This situation would arise whenever a certain number of cooperative stockholders who do not oppose a proposed action nevertheless neglect to cast votes favoring the action, causing it to fail.
In this note, the author argues that agricultural cooperatives organized under the ACA can indeed limit or deny stockholder voting rights as pro-vided in the BCA, and recommends that the Illinois General Assembly make its intention clear in this regard.
The Simmering Debate over Supplemental Jurisdiction
James E. Pfander | 2002 U. Ill. L. Rev. 1209
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In this essay, Professor Pfander revisits the debate surrounding supplemental jurisdiction under 28 U.S.C. § 1367, specifically, § 1367’s effect on Zahn v. International Paper Co. The Supreme Court held in Zahn that a federal court, sitting in diversity, may not exercise supplemental jurisdiction over claims by unnamed members of a plaintiff class that fail to satisfy the amount-in-controversy requirement. One account of § 1367 is that the statute overruled Zahn’s restrictive view of supplemental jurisdiction. An alternative account, adopted by the Tenth Circuit in Leonhardt v. Western Sugar Co., is that the statute preserves Zahn’s prohibition. Recent decisions by the Fourth and Ninth Circuits deepen a circuit split on the question, perhaps increasing the likelihood that the Supreme Court will address the question.
Professor Pfander defends the Leonhardt account. After providing a brief overview of the interpretive issues, Professor Pfander considers and rejects a variety of criticisms of the Tenth Circuit’s approach that have appeared in recent decisions. This thoughtful essay offers the reader a textually credible account of § 1367 that squares with what Congress expected the statute to accomplish and refrains from unsettling the many jurisdictional distinctions that had emerged before the codification of supplemental jurisdiction.
Believing Persons, Personal Believings: The Neglected Center of the First Amendment
Steven D. Smith | 2002 U. Ill. L. Rev. 1233
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In this article Professor Smith addresses how our conception of what it means to be a person influences First Amendment law. The arti-cle explains how the conception of the person as a believer elucidates the values that the First Amendment protects thereby providing a justification for why speech and expression are protected, and providing guidance regarding the general direction the legal doctrine should take. After discussing the shortcomings of conceiving of the person as interest-bearer, autonomous agent, and citizen, the article proposes a conception of the person as believer, explaining how believing is essential to personhood. The article concludes by exploring the implications of the believing person for First Amendment jurisprudences, specifically advocating the older “category” approach and casting doubt on the “neutrality” position that has come to dominate modern First Amendment jurisprudences regarding both speech and religion.
Civil Liberty Versus Civil Liability: Robert O'Neil Defends the First Amendment
Eric M. Gander | 2002 U. Ill. L. Rev. 1321
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Israel's Law of Return and the Debate of Altering, Repealing, or Maintaining Its Present Language
Mark J. Altschul | 2002 U. Ill. L. Rev. 1345
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This note examines the factors that lead to the implementation of the Law of Return in Israel. The Law of Return plays an important role by permitting members of the Jewish faith to receive Israeli citizenship.
The author begins by providing a history of the development of Israel as a nation and exploring the origins of its Law of Return. Next, he traces the historical impact of the Law of Return on the country and on those immigrating to this nation, with a special emphasis on those emigrating from Russia. Next, the author analyzes the recent movement toward amendment of the Law of Return. Religious leaders propose that the Law of Return should be amended to recognize immigrants as Jews (under religious law) only if the immigrants undergo an Orthodox conversion. The author notes that this proposal, however, could alienate Jewish Americans as well as Jewish immigrants from the former Soviet Union. On the other hand, some politicians and intellectuals recommend a more radical reform of the Law of Return. Arguing that the Law of Return demonstrates an “intolerance for its minority population,” they recommend that the Law of Return be drastically changed or abolished.
The author proposes that the two sides reach a compromise that requires Israel to establish the Orthodox-Conservative-Reform Conversion Institute. This institute would encourage the continued immigration of Jews to Israel because it would permit entire families to immigrate to Israel and eventually enable the non-Jewish members of the family to convert to Judaism. Such an institute will help alleviate the concern that while some immigrants are considered to be Jewish in their home coun-try, these same individuals may not be considered Jewish under Israel’s Law of Return. An issue of this magnitude affects immigrant identity within the community as well as immigrant prospects for marriage (since interfaith marriage is looked down upon).
The author argues that compromise remains the best solution since the complete abolishment of the Law of Return would be too radical considering the fact that Israel has yet to achieve peace with several of its neighboring nations. Until peace is established, Israel needs to maintain the current law.
Pitfalls for the Unwary: How Sexual Assault Counselor-Victim Privileges May Fall Short of Their Intended Protections
Jennifer Bruno | 2002 U. Ill. L. Rev. 1373
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In the wake of a sexual assault, a victim is faced with sensitive questions, grueling examinations, and life-altering decisions. To assist victims in dealing with such issues, many communities make sexual assault crisis counselors available. These counselors act as support persons for the victim as he or she deals with police, doctors, prosecutors, friends, and family. Because these counselors provide such valuable services, many state legislatures have enacted evidentiary privileges to protect information exchanged between counselor and victim.
This note explores sexual assault counselor-victim privileges and deals with the possibility that judicial interpretation of confidentiality and waiver may impair their efficacy. While the creation of counselor-victim privileges has encouraged victims to utilize counselors after a sexual as-sault, the privilege laws are ambiguous regarding the effect that interactions with third parties have on the confidential relationship between counselor and victim. As a result of this uncertainty, counselors may avoid accompanying the victim to meetings between the victim and police, prosecutors, or medical professionals.
This note will suggest that if courts interpret privilege statutes in a manner that disallows interactions with third parties, victims’ access to important services will be restricted. This note will also assert that courts should not use attorney-client privilege case law to construe sexual assault counselor-victim privileges. Finally, this note will propose an alternative statute that would augment the victim’s power to include third parties in the counseling process.
Railroad Right-of-Way Easements, Utility Apportionments, and Shifting Technological Realities
Jeffery M. Heftman | 2002 U. Ill. L. Rev. 1401
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This note explores the controversy that arises when railroads attempt to apportion their linear corridor interests in land to communications pro-viders. Landowners often dispute the apportionments and demand com-pensation for the burdens placed on their land by the new uses. Recog-nizing that a significant part of today’s debate centers around the nature of the interests held by railroads and their successors in interest, the au-thor looks to the past to explore the nature of the interests originally granted by landowners to the railroads. The author observes that a sig-nificant amount of variation exists in the interests originally granted to railroads. Courts differ in how they interpret these interests and gauge whether the new owners have overstepped their bounds. Specifically, the author divides the approaches taken by courts into three categories: the traditional view, the incidental use doctrine, and the shifting public use doctrine. After analyzing all three, the author concludes that the shifting public use doctrine is the soundest approach in light of both accepted property law principles and also the public interest in benefiting from new communications technology.
Politicization, Chaotic Policy, and Trip Wires: Problems with Epilepsy Foundation
Isaac S. Wofford | 2002 U. Ill. L. Rev. 1427
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In this note the author thoughtfully explores the issue of whether Weingarten Rights should be extended to nonunion employees. Without settling upon a definitive answer to that question, this note suggests that Epilepsy Foundation, the recent National Labor Relations Board ruling which extended Weingarten Rights to nonunion employees, was decided too hastily and without due regard for precedent. The author’s skepti-cism of the Board’s decision to overrule fifteen years of precedent is based on his review of the Weingarten decision and the numerous Board rulings that refused to extend Weingarten Rights to nonunion employees. In addition, the author takes a fresh look at the text of, the history of, and policy behind the National Labor Relations Act. Partially discounting the claims of some critics that Epilepsy Foundation creates a “trip-wire” over which employers will stumble and inadvertently burden the rights of employees, the author cautions that unpredictable Board decisions and an inability to rely with confidence on established precedent are the real threats to the rights of employers and employees. This note suggests that the issues raised by Epilepsy Foundation cannot be finally put to rest until these “rights” are codified into rules that are more resistant to political whim than the current practice of case-by-case policy determination.