Volume 2014Masthead PDF
Energy law is substantively complex and deeply fragmented. Each energy sector—including fuel extraction and pipelines, electricity generation and transmission, and transportation—has its own legal regime and federalism approach. Confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and public pressure for cleaner energy. Regulators struggle to: (1) manage the risks of hydraulic fracturing and deepwater drilling, which are increasingly common in light of dwindling conventional oil and gas reserves; (2) upgrade our aging electricity grid; and (3) integrate renewable energy sources onto that grid and into electricity markets.
This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical modern energy challenges. Building from our prior work arguing for a dynamic approach to energy federalism, this Article focuses on the potential of institutions that are “hybrid” by virtue of including public and private actors from several governance levels and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers to substantive progress in energy law, such as inadequate, divided regulatory authority, and the complexities of including key private actors in energy decision making. After introducing its new conceptual model, this Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified here. It analyzes their progress in meeting these challenges and how their hybrid governance approach is assisting them in doing so.
The law of foreign sovereign immunity changed dramatically over the course of the 20th century. The United States abandoned the doctrine of absolute immunity and opened its courts to lawsuits by private claimants against foreign governments. It also pursued a range of other policies designed to shift such disputes into litigation or arbitration (and thus relieve political actors of pressure to intervene on behalf of disappointed creditors). This Article uses a unique data set of sovereign bonds to explore how international financial contracts responded to these legal and policy initiatives.
The Article makes three novel empirical and analytical contributions. The first two relate to the law of sovereign immunity and to the role of legal enforcement in the sovereign debt markets. First, al-
though the decision to abandon the absolute immunity rule was a major legal and policy shift, this article demonstrates that investors dismissed their new enforcement rights as irrelevant to the prospect of repayment. Second, the ongoing Eurozone debt crisis has prompted fears that private investors will use litigation to prevent debt restructurings necessary to revive European economies. This Article shows that such fears may be overblown and, in the process, informs the broader empirical and theoretical debate about the role of legal enforcement in the sovereign debt markets.
Finally, the Article exposes a gap in contract theory as it pertains to boilerplate contracts such as sovereign bonds. Boilerplate presents a puzzle of intense interest to contracts scholars. It is drafted to serve the interests of sophisticated, well-resourced players, yet it often remains static in the face of new risks. To explain this inertia, contract theory posits that major shifts in boilerplate financial contracts require a financial crisis or other exogenous shock that substantially alters investors’ risk perceptions. This Article, however, demonstrates that the Foreign Sovereign Immunities Act of 1976 prompted a major shift in contracting practices despite investors’ continued indifference to legal enforcement and argues that contract theory must recognize that a wider range of forces may prompt boilerplate to change.
Misrepresentation: The Restatement’s Second Mistake
Stephanie R. Hoffer | 2014 U. Ill. L. Rev. 115
Download PDF | Abstract
The contract defenses of mistake and misrepresentation can be used to unravel deals as big as a corporate merger and as small as the sale of a used car. These two defenses, while conceptually distinct in theory, contain a significant amount of overlap in practice, causing courts to conflate the two legal standards. A misrepresentation of one party, when believed, results in a mistaken belief of the other, and both defenses address fundamental flaws in bargaining that throw the contracting parties’ consent into question. The coextensiveness of the defenses suggests that, absent an overriding normative justification, the legal test and remedy should be the same for each. Such a normative justification exists only in the case of fraudulent misrepresentation which, unlike mistake or nonfraudulent misrepresentation, involves the intentional infliction of a dignitary harm. In such cases, punishment and deterrence are appropriate normative goals but neither are addressed by currently prevailing common law. Providing a single test for cases of misrepresentation and mistake with recourse to punitive damages in cases of fraud would harmonize the defenses with their normative underpinnings and eliminate inefficient redundancies in the common law.
A court in doubt about an IP statute’s scope can err in two ways. It can wrongly narrow the IP right’s reach, or wrongly broaden it. The latter error, however, is worse: A wrongly broadened IP statute effectively creates new property and thereby diminishes the public domain and others’ freedom of action. To correct erroneous broadening, unlike erroneous narrowing, the legislature must thus eliminate a now-established property right. And that is very hard to do. Courts cannot, of course, avoid making at least some mistakes. Courts can, however, prefer the mistakes that are easier, not harder, for the legislature to correct. This Essay explores this error-cost-based approach to IP statutes. The time is ripe for more effective interbranch dialogue on IP law, for the America Invents Act of 2011—comprising some of the most significant changes to patent law since the 1952 Patent Act—came fully into force in March 2013.
Poverty and Civil Rights: A Behavioral Economics Perspective
Eldar Shafir | 2014 U. Ill. L. Rev. 205
Download PDF | Abstract
The International Bill of Human Rights recognizes a universal entitlement to “the continuous improvement of living conditions.” A dignified existence is a common concern of modern civilization and of the social sciences. But the mindset that emerges when we have too little creates challenges that often impede the improvement of living conditions. Poverty is a shortage not merely of financial resources but of cognitive resources as well. When people are preoccupied with budgetary concerns, they have fewer mental resources to devote to other things. For the more wealthy, everyday budgetary considerations represent manageable intrusions. The wealthy have slack in their budget and can manage unexpected expenses with relative ease. The poor, on the other hand, have little slack: unexpected expenses require giving up essentials, like rent payments or utility bills, and making frequent and difficult tradeoffs. The frequent challenges and heightened stakes eat up comparatively more of the poor’s mental resources, leaving less mind for other problems.
This Article employs a suitcase metaphor for people’s budgeting. The wealthy have a “big suitcase” which allows them to pack modest items casually. The poor have a “small suitcase” which must be packed intently and with great care. The packer of a small suitcase must carefully consider the size of each new item, and what can be removed each time they want to put something in.
The Article describes the results of empirical research done by the author and his colleagues into decision making under conditions of plenty and of scarcity. Among the topics examined in the studies are the impact of easier versus more imposing financial challenges on cognitive capacity, the psychology of borrowing, and the potential impact of financial concerns on other, nonfinancial behaviors.
Scarcity impacts a person not only directly, as wants or needs go unfulfilled, but also indirectly, as we struggle to make do with less. Persistent financial concerns impose a cognitive load on a limited bandwidth, which can impinge on other aspects of life, and can create poverty traps. The solution for alleviating the problem cannot be to reduce the already modest needs of the poor, nor to try to increase our inherently limited bandwidth. When the suitcase cannot be enlarged through higher wages or wealth transfers, the next option is to facilitate packing. By creating a more reliable, stable, and forgiving context, which the wealthy already enjoy, the everyday management of life under scarcity can be made easier, some bandwidth liberated, and costly mistakes and their menacing consequences reduced. This approach may bring us closer to the delivery of the universal entitlement to “the continuous improvement of living conditions.”
Leaving Feedback: An Analysis of eBay, Online Auctions, and Personal Jurisdiction
Dawson J. Price | 2014 U. Ill. L. Rev. 231
Download PDF | Abstract
The Internet has revolutionized the way that Americans conduct business. In the last decade, online transactions have grown in volume and importance, and Internet marketplaces have become mega centers for e commerce. Courts and commentators have labored to apply personal jurisdiction analyses to online buyers and sellers generally, but personal jurisdiction in the context of online auctions has created additional confusion and inconsistencies. As technology has become more sophisticated, Internet auction websites like eBay have created numerous customization tools to make their services more appealing to a wide range of sellers—from one-time sellers, to small businesses just starting to create an internet presence, to businesses that revolve entirely around eBay’s services. The depth of customization offered to sellers has been overlooked by courts in personal jurisdiction inquiries and this, in turn, has created surprising inconsistencies in personal jurisdiction determinations between seller activity on personal e commerce websites and seller activity on online auction websites. This Note discusses the mechanics of eBay listings and their implications for personal jurisdiction determinations. Specifically, does it make sense for courts applying the Zippo test to personal websites to avoid an interactivity analysis for transactions that occur over eBay? This Note further suggests that the nearly limitless options for customization available to sellers require a fact intensive, case-by-case analysis of personal jurisdiction that avoids broad conclusions about the mechanics of eBay auctions. Among other things, courts should consider the restrictions sellers place on their listings, the listing activity itself (such as whether the seller rejected bids, communicated with buyers, and the extent and content of those communications), and the use of outside media or other sites by which sellers might maximize their online presence. The level of control that online auction sellers enjoy undermines current judicial understanding of the online auction process, and by focusing on the tools that sellers actually use to sell their items, courts will be able to reach more consistent and equitable results in personal jurisdiction challenges.
Juror Questioning of Witnesses in Criminal Trials: The “Jury’s Still Out” in Illinois
Kristen L. Sweat | 2014 U. Ill. L. Rev. 271
Download PDF | Abstract
Over the last couple of centuries, the American jury has devolved from an active interrogator to a passive observer. Various reform movements have attempted to restore the jury’s active role. Most recently, Illinois passed Illinois Supreme Court Rule 243. This rule allows members of the jury to ask witnesses questions. The hope is that by allowing jurors to ask questions, they will become more engaged and more deeply comprehend what is occurring in the trial. Additionally, it will make for a more informed jury, raising the chances that a fair verdict is returned.
Rule 243, however, only applies in civil trials. Jurors cannot ask questions of witnesses in criminal trials. This Note argues that Rule 243 should expand to allow jurors to ask witnesses questions in criminal trials. In criminal trials, the most basic American interests of freedom and justice are at stake. Allowing jurors to ask questions of witnesses is paramount to preserving these interests.
This Note begins by looking at the history of juror questioning in America, as well as in Illinois, specifically the events leading up to the passage of Rule 243. Additionally, it presents the approaches of other jurisdictions to juror questioning. There are three types of approaches: (1) express prohibition of jury questions; (2) no express prohibition but lack of implementation of the practice; (3) allowance of jury questions within specific guidelines.
While there are noted benefits and drawbacks to allowing jurors to ask questions of witnesses, this Note argues that the interests of justice are best served by allowing these questions in both civil and criminal trials. It concludes by proposing a rule similarly worded to Rule 243 but including guidelines particular to criminal trials.
Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior
Jacqueline G. Waldman | 2014 U. Ill. L. Rev. 311
Download PDF | Abstract
Freedom of speech under the First Amendment once again is in jeopardy—this time, in the form of unconstitutional prior restraints on personal video recordings. In the age of smartphones and media-sharing services like YouTube and Facebook, video recording and uploading or distributing has become a natural—and even expected—form of communication. It is commonplace that people record trivial, everyday moments, and, it remains routine for people to record noteworthy events or occurrences. In a certain sense, countless media users and sharers around the country have become the functional equivalents of journalists reporting and commenting on all aspects of life and society. Thus, in the wake of a growing public disillusionment regarding law enforcement and the criminal justice system, people have begun video recording police behavior as the officers are acting in the public discharge.
Such videography has not existed without pushback from law enforcement. In response to these civilian-made video recordings, many police officers confiscate the video recording devices and/or destroy the files containing the recordings. This type of police interference has brought with it a storm of controversy. The debate centers on whether personal video recording of police conduct is “speech” that qualifies for First Amendment protection, and if so, whether confiscating and/or destroying the videos before their dissemination amounts to an unconstitutional prior restraint on speech—the most serious incursion of one’s First Amendment speech freedom.
This Note ultimately argues that destroying an individual’s video recording before the individual has the chance to disseminate it does indeed impose an unconstitutional prior restraint on speech. In arriving at this conclusion, this Note analyzes: (1) whether video recordings of police constitute speech, (2) whether the state can offer independent justifications for the restraint on speech, and (3) whether any exceptions articulated in prior restraint jurisprudence justify the destruction of the recordings. In addition to its recommendation that police officers’ confiscation and/or destruction of civilian-made videos be formally declared a prior restraint, this Note offers two suggestions to prevent the restraint from occurring: (1) require police to obtain warrants before seizing or destroying civilian-made video recordings, and (2) install a supervisory level of review to help curtail this form of prior restraint on speech.
Ideology, Qualifications, and Covert Senate Obstruction of Federal Court Nominations
Ryan J. Owens, Daniel E. Walters, Ryan C. Black, Anthony Madonna | 2014 U. Ill. L. Rev. 347
Download PDF | Abstract
Scholars, policy makers, and journalists have bemoaned the emphasis on ideology over qualifications and party over performance in the judicial appointment process. Though, for years, the acrimony be-tween the two parties and between the Senate and President remained limited to appointments to the United States Supreme Court, the modern era of judicial appointments has seen the so-called “appointments rigor mortis” spread throughout all levels of judicial appointments. A host of studies have examined the causes and consequences of the growing acrimony and obstruction of lower federal court appointments, but few rely on archival data and empirical evidence to examine the underlying friction between the parties and the two branches.
In a unique study, the authors examine archival data to deter-mine the conditions under which Senators obstruct judicial nominations to lower federal courts. More specifically, the authors examine one form of Senate obstruction—the blue slip—and find that Senators use their blue slips to block ideologically distant nominees as well as unqualified nominees. More importantly, however, the authors find that among nominations to federal circuit courts, Senators block highly qualified nominees who are ideologically distant from them just as often as they block unqualified nominees who are ideologically distant from them. That is, stellar qualifications do not appear to mitigate the negative effects of ideological distance. The fact that blue slips occur in private, away from public view, allows Senators to block nominees entirely on ideological grounds without fear of individualized public retribution. Senators, in short, have taken an ag-gressive role in blocking highly qualified nominees who would otherwise make significant—but opposing—policy and who might one day become credible nominees to the Supreme Court were their nominations to move forward. By killing these nominations in the cradle, and outside the public view, Senators can block or delay the confir-mation of judges with whom they disagree ideologically.
The authors point out that policy makers and scholars who seek to reform the judicial appointmentprocess must therefore be very clear about their goals. If a reform’sgoal is to minimize the role of Senate ideology in the appointment process, then proposals that insu-late the process from the public eye are likely to backfire. For, as the data show, Senators take advantage of insulation to achieve ideologi-cal goals. On the other hand, if a reform’s goal is to maximize the role of Senate ideology—perhaps to offset the President’s first mover advantage or to recognize and directly address the fact that courts are policy making bodies—then proposals that insulate the process from the public eye are likely to accomplish that goal.
Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures—a trend said to be explosive—they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.
How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. It explores a large database of agreements entered into by public firms and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses and the economic logic which makes them so compelling.
A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform, and progressive; they will be punctuated, particularized, and contingent.
The movement for same-sex marriage has been politically triumphant, but its case is incomplete because the arguments against it have not been understood. Major social change should not occur without addressing the claims made by same-sex marriage opponents. This piece presents and critiques consequentialist and nonconsequentialist arguments against same-sex marriage. The conse-quentialist arguments rely on claims that legalizing same-sex marriage will lead to disastrous societal and familial effects. The nonconsequentialist arguments rest on claims that marriage is an inherently heterosexual institution. The Article concludes that none of these arguments have merit.
This Article presents new empirical evidence demonstrating that serious intra-corporate disputes at public companies now attract law-suits in multiple fora. No existing mechanism can reliably coordinate shareholder litigation in different court systems, and the resulting dis-order generates uniformly negative consequences for shareholders. The multi-forum character of shareholder litigation can undermine its deterrent effect by aggravating the disjunction between settlement val-ues and merit. At the same time, the multi-forum pattern can dimin-ish the quality of U.S. corporate law over time by depriving incorporation states of important cases. This Article proposes to fix multi-forum shareholder litigation by creating a clear and simple mechanism for coordinating similar cases in different court systems. This proposal would require federal courts to stay proceedings in shareholder litigation when a similar case is pending in the state of incorporation. It would also allow suits filed in states other than the state of incorporation to be removed to federal court, where they would be subject to the same stay of proceedings. Such a system would neutralize the ability of any plaintiff to file a case that could compete for settlement with a case in the incorporation state. The result is an ordered solution to the problem of multi-forum shareholder litigation that prioritizes the state of incorporation when suits are filed in competing fora but otherwise does nothing to restrict the venue options of shareholders.
A Chink in the Armor? The Prosecutorial Immunity Split in the Seventh Circuit in Light of Whitlock
Nicholas R. Battey | 2014 U. Ill. L. Rev. 553
Download PDF | Abstract
For U.S. citizens whose constitutional rights have been violated
by government officials, 42 U.S.C.§ 1983 provides a powerful form
of punishment against the wrongdoer.Wrongful convictions due to
prosecutorial misconduct, such as withholding Brady material or fabricating evidence, should theoretically allow victims of these erroneous convictions to sue the prosecuting attorney. Yet, the answer is not
this simple because the Supreme Court’s prosecutorial immunity doctrine bars Section 1983 suits against prosecutors in certain instances.
In 2012, the Seventh Circuit examined two prosecutorial immunity cases, but, somewhat perplexingly, arrived at two different answers. This Note examines the Seventh Circuit’s split on prosecutorial immunity and the reasoning behind each case’s result, after laying the backdrop to Section 1983, the immunity doctrine, and policy rationale for prosecutorial immunity in particular. Using economic principles, this Note argues that prosecutorial immunity doctrine should be re-formed to promote prosecutorial autonomy and criminal justice system efficiency, while more effectively deterring prosecutor misconduct. This Note seeks to balance the needs of the criminal justice system with a citizen’s right to a remedy by recommending broader discovery disclosure rules and criminal sanctions to prevent prosecutor misconduct. Finally, the Note examines the lack of available data and empirical studies on effective deterrence methods and provides suggestions for what future studies should examine.
Minimizing the menace of the Foreign Corrupt Practices Act
Kristin Isaacson | 2014 U. Ill. L. Rev. 597
Download PDF | Abstract
In the second half of the twentieth century, the United States decided to crack down on foreign corruption as part of its attempt to
stop the spread of communism abroad. Pursuant to this goal, Congress passed the Foreign Corrupt Practices Act (FCPA), which generally prohibits American corporations from bribing foreign officials.
This Note examines the various problems associated with the FCPA: the disadvantages created by the FCPA’s creation of an uneven playing field for American corporations, the inherent ambiguity of the FCPA’s language, and the subsequent excessive compliance costs created for U.S. corporations operating abroad. In addition, this Note addresses the United States’ uneven enforcement of the FCPA, and the Act’s effect in foreign countries where certain forms of “bribery” are considered the price of doing business.
In light of the problems created by the FCPA for both U.S. corporations and the foreign countries in which they operate, this Note ultimately recommends that the ambiguous bribery provisions of the FCPA should be clarified or repealed entirely and the problem of corruption in foreign countries reassessed.
The Supreme Court and § 101 Jurisprudence: Reconciling Subject-Matter patentability Standards and the Abstract Idea Exception
Jeremy D. Roux | 2014 U. Ill. L. Rev. 629
Download PDF | Abstract
Can abstract ideas be patented? Not surprisingly, the act of defining a patentable abstract idea is inherently abstract. Subject-matter patentability is addressed in 35 U.S.C. § 101, which lays out four types of inventions eligible for patent protection. Although the statute has been construed broadly, it has been subject to three judicially created exceptions, and one of them is abstract ideas. While § 101 is well suit-ed to adapt to changes due to new and unforeseen technologies introduced into our society, a coherent rule to govern patentability of abstract ideas has been lacking. After thirty years’ confusion over § 101 subject-matter patentability in federal courts, the U.S. Supreme Court recently took the opportunity to address this problem in two very important cases. Unfortunately, the Supreme Court has taken a passive position, without elaborating on a definitive substantive framework to aid lower courts in the § 101 abstract idea analysis. As a result, the subsequent Federal Circuit opinions have often been unclear and contradictory. This Note addresses the many unresolved issues surrounding the abstract idea analysis as evinced by Supreme Court and Federal Circuit jurisprudence in the past three years. In addition to outlining each opinion’s reasoning and summarizing key themes, this Note offers a pragmatic solution that could add more certainty to § 101 jurisprudence. The suggested approach would enable § 101 to filter out undesirable inventions without overburdening courts by forcing them to grapple with the amorphous bounds of abstract ideas.
Contract law is celebrated for empowering private parties to en-act customized legal rules. Anyone can summon state actors to en-force personally tailored laws that govern private agreements. Yet this unique power is obviously limited in scope and context, and it is important to consider where and why we draw these borders. One can write a contract that annuls tort liability, for instance, but criminal laws cannot be overruled by contract—even in a hypothetical lawless commune where everyone is willing to accede to the change. One of the most interesting and persistent theoretical border-lands relates to gift promises. The consideration doctrine formally bars gift promises from the domain of contract law, but there are a number of side doors—such as reliance, moral obligation, and irrevocable trusts—that permit some gratuitous promises to be treated like contractual obligations. These one-way promises do involve future transfers, after all, and they feel very close to bilateral exchange. Con-tract law has refused to convert all gift promises into binding obliga-tions, however, and it has even made itmore difficult to form mindful commitments here by repealing the efficacy of the seal.
But there is another, previously unexplored dimension to this puzzle. Contract law embraces special rules that protect third-party beneficiaries—outsiders who enjoy legal enforcement rights despite a lack of privity. Moreover, these rights can be vested as irrevocable. This Article argues that this obscure corner of contract law should receive independent legal significance,such that a mindful promisor should be able to recruit a willing counterparty to make a binding gift promise in any context. It demonstrates this third-party beneficiary technique, evaluates the implications for the borders of contract law, and concludes that vested third-party beneficiary rights are a feasible (though unexpected) device for moving gift promises comfortably in-to the realm of contract law
Congress established a permanent Joint Committee on Taxation (the JCT) as part of the Revenue Act of 1926. Initially, the JCT was granted the broad oversight authority typically enjoyed by congressional committees. Under the 1926 Act, the JCT would investigate the operation of the tax laws and examine how the tax system affected the public. In the Revenue Act of 1928,Congress charged the JCT with an additional role in tax administration. Under that act, the JCT would review any large refund that the IRS proposed to issue to a
taxpayer. The statute (now codified in § 6405(a) of the Internal Revenue Code) did not grant the JCT any explicit power to prevent the issuance of large refunds, but instead simply required that the IRS give the JCT thirty days’ notice before issuing any of those refunds. Over time, the JCT has come to play more than a purely advisory role, and the IRS will not issue refunds without JCT approval.
This Article suggests that Section 6405(a) raises separation of
powers questions because it mandates systematic congressional involvement in tax refund determinations, a task long considered inherently executive. Constitutional issues related to the JCT’s involvement in refund determinations have gone largely unexplored in the scholarly literature, thought a few commentators have briefly analyzed the refund review function under INS v. Chadha. Commentators apparently agree that the refund review function poses no constitutional problems because the JCT lacks a statutory veto over IRS refunds.
This Article argues that the absence of a statutory veto does not
automatically validate the JCT refund review function, and that
§ 6405(a)’s thirty-day holding period instead violates the separation of powers. In reaching this conclusion, this Article uses a largely formalist, text-centered approach to separation of powers questions. Under this approach, § 6405(a) violates the separation of powers because it goes outside of the “legislative power” granted to Congress in Article I.
Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres
Mark D. Rosen | 2014 U. Ill. L. Rev. 737
Download PDF | Abstract
Individual religious liberty enjoys strong legal protections sup-ported by an underlying contemporary consensus in the United States. This legal and cultural consensus took root after a wave of individuals’ complaints of government interference with their ability to practice their religion’s dictates. But the current claims of religious interference have been increasingly asserted on behalf of an array of religiously affiliated institutions. Unlike previous claims, there is no normative consensus as to what, if any protections, these myriad institutions should receive. This uncertainty can be seen in the federal government’s chaotic responses—from recent Supreme Court case law to the Affordable Care Act’s contraception mandate. Scholars have staked out two opposing positions. One group has argued that churches and affiliated religious institutions should be entitled to legal autonomy. A second camp has argued that the state is the singular source of legal authority in modern politics and that all authority and status of a church is entirely derivative of its members’ rights of voluntary association and conscience. This article proposes a third framework to determine the appropriate relationship between religious institutions and the state, what it dubs the Religious Institution
Principle. Drawing on John Rawls, this framework rejects both the view that religious institutions are jurisdictionally independent of the modern state, and that religious institutions’ status is derivative of its members’ rights of association and conscience. Instead, the Article argues that religious institutions cannot be reduced to the individuals who compose them, but instead that the protections they deserve may be “greater than the sum of the parts” of their constituent members. The Religious Institution Principle provides a principled approach for determining what counts as a religious institution and what protections such institutions are entitled to.
Why Did Law Professors Misunderestimate the Lawsuits Against PPACA?
David A. Hyman | 2014 U. Ill. L. Rev. 805
Download PDF | Abstract
Almost without exception, elite law professors dismissed the possibility that the Patient Protection and Affordable Care Act (variously called “PPACA,” “Obamacare,” and the “Affordable Care Act,”) might be unconstitutional—but something went wrong on the way to the courthouse. What explains the epic failure of elite law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this Article identifies five factors that help explain the erroneous predictions of our nation’s elite law professors,who were badly wrong, but never in doubt.
The Article argues that we can and should protect the liberty of both sides in the culture wars; that conservative churches would do well to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors; and similarly, that supporters of rights to abortion, contraception, gay rights, and same-sex marriage would do well to concentrate on securing their own rights and to concede that conscientious objectors should rarely be required to support or facilitate practices they view as evil.
Holy Smokes! Can the Government compel Tobacco Companies to Engage in Inflammatory Commercial Speach?
Kristen A. Hosack | 2014 U. Ill. L. Rev. 881
Download PDF | Abstract
In 2009, President Obama signed the Federal Smoking Prevention and Tobacco Control Act, permitting the FDA to include textual and photographic warnings about the perils of smoking on cigarette packs. The health risks of cigarettes are well known by the American people. Courts are split, however, on whether the inclusion of these warnings violates First Amendment protection of freedom of speech. This Note examines the history of America’s regulation of the tobacco industry. It then analyzes the different conclusions reached by the Sixth Circuit and D.C. Circuit on the constitutionality of these warnings, scrutinizing the tests that each court used. Finally, this Note argues that, if the Supreme Court chooses to resolve this circuit split, it should use a modified version of the D.C.Circuit’s test. If this test is applied, the Supreme Court will find that mandating such warnings on cigarette packs is unconstitutional.
Hate Crime and Punishment: WHy Typical Punishment does not Fit the Crime
Laura Meli | 2014 U. Ill. L. Rev. 921
Download PDF | Abstract
This Note explores the arguments for and against hate crime laws, ultimately determining that changes are necessary to balance the harm to victims and the burden on offenders caused by enhanced penalties. Hate crime laws provide for enhanced penalties when the perpetrator is motivated by hatred of the victim’s race, gender, sexual orientation, etc. This Note details the history of hate crime laws in the United States and sets out the debate surrounding them. On one side of the debate are those who support enhanced punishments because of the despicable nature of hate crimes. The other side has advocated for abandoning hate crime laws, arguing that such laws incorrectly punish hateful thoughts.
This Note also includes an extensive look at philosophical theories of punishment, and how enhanced penalties for hate crimes fit within these theories. This Note ultimately concludes that effective
punishment must involve elements that change the hateful mindset of
the perpetrator. Finally, this Note asserts that hate crime punishment must be just, only punishing criminals in proportion to the harm that they have caused.
Death from Above: The Executive Branch's Targeted Killing of United States Citizens in the War on Terror
Marisa Young | 2014 U. Ill. L. Rev. 967
Download PDF | Abstract
On September 30, 2011, the Obama administration announced the death of alleged terrorist Anwar al-Awlaki, the first U.S. citizen to
be the subject of a targeted drone strike. While targeted killings are not a recent development in the international community, they have been increasingly utilized following the events of September 11, 2001 and the United States’ subsequent War on Terror. Embroiled in an asymmetric war against a network of nonstate actors, the United States has increasingly relied upon targeted killings to defend against terrorist threats.
The addition of U.S. citizens to government “kill-lists,” however, raises troubling questions regarding due process and separation of powers. This Note discusses the recent historical background and constitutional considerations relevant to targeted killings, and analyzes the inadequate constitutional protections currently employed by an overly powerful executive branch.
In light of these concerns, this Note ultimately recommends that the executive branch adopt a new form of judicial review that allows a neutral decision maker to review evidence and ensure that decisions to target U.S. citizens are justified, thereby preventing errors and providing targeted citizens with a minimum level of due process.