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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
Dude, Where's My Car Title?: The Law, Behavior, and Economics of Title Lending Markets
Kathryn Fritzdixon, Jim Hawkins, Paige Marta Skiba | 2014 U. Ill. L. Rev. 1013
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Millions of credit-constrained borrowers turn to title loans every year to meet their liquidity needs. Legislatures and regulators have debated how to best regulate these transactions, but surprisingly, we still know very little about the customers who use title loans. This Article reports findings from the first large-scale academic study of title lending customers. We surveyed over 450 title lending customers across three states and obtained information about customers’ demographic and behavioral characteristics. Based on the results of our survey, and guided by insights from behavioral economics, this Article seeks to reframe the title lending
debate. Instead of focusing on the risks and consequences of borrowers’ cars being repossessed, as the vast bulk of the literature does, we argue that the primary problem that most borrowers face is underestimating the true cost of taking out a title loan. Borrowers’ survey responses demonstrate that many borrowers are overly optimistic and experience self-control problems that affect their ability to make timely loan payments. We argue that these deviations from the assumptions of classical economics do not warrant an outright ban of title lending, but they do provide room for policy interventions. Policymakers can improve efficiency in title lending markets by requiring lenders to disclose to consumers the likely experiences they will have with their title loans rather than merely requiring lenders to communicate
THE CONSTITUTIONALITY OF GOVERNMENT-IMPOSED BODILY INTRUSIONS
Caitlin E. Borgmann | 2014 U. Ill. L. Rev. 1059
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Throughout its history, this country has recognized the common
law right against bodily intrusions. It is considered among the
most cherished of rights. It seems beyond debate that a parallel
right against government-imposed bodily intrusions should receive
robust constitutional protection. Yet the Supreme Court’s treatment
of the right against government-imposed bodily intrusions is
muddled and lacks an overarching theory. Far from recognizing the
right as fundamental, the Court has effectively demoted the right
from its deserved status through two major analytical missteps.
First, the Court has created arbitrary doctrinal barriers between different
manifestations of the same right rather than consistently
treating it as a unitary, fundamental substantive due process right.
Second, it has given insufficient weight to the nonphysical, or “psychological”
harms of forced bodily intrusions, and has deferred excessively
to the government’s justifications for intruding. This Article
is the first to conduct a comprehensive analysis of the scattered
Supreme Court precedents on government-compelled bodily intrusions.
In place of the ad hoc balancing tests the Court has tended to
employ, this Article proposes a unified framework for assessing
government-compelled bodily intrusions that recognizes substantive
due process as the matrix for the right and that takes meaningful account
of the psychological harms that accompany forced physical intrusions
and the importance of considering less intrusive alternatives.
This Article then applies the framework to a case currently
before the Supreme Court involving forced blood drawing and to
state pre-abortion ultrasound mandates, the subject of a developing
circuit split. The proposed framework finally places the right
Between the Civil War and World War II, every state and the
federal government shifted toward codified versions of their statutes.
Academia has so far ignored the systemic effects of this dramatic
change. For example, the consensus view in the academic literature
about rules and standards has been that precise rules present higher
enactment costs for legislatures than would general standards, while
vague standards present higher information costs for courts and citizens
than do rules. Systematic codification—featuring hierarchical
format and numbering, topical arrangement, and cross-references—
inverts this relationship, lowering transaction costs for legislatures
and increasing information costs for courts and citizens as statutes
proliferate. This Article takes a first look at this problem. On the legislative
side, codification makes it easier for special interest groups to
obtain their desired legislation. It facilitates Coasean bargaining between
legislators and encourages legislative borrowing, which diminishes
the laboratories of democracy phenomenon. For the courts,
codification changes how judges interpret statutes, prompting them to
focus more on the meaning of individual words than on the overall
policy goals of enactment and to rely more on external sources, such
as legislative history. For both legislators and courts, codification
functions as a Hartian rule of recognition, signaling legality for enacted
rules. For the citizenry, the reduced legislative costs mean increased
legislative output, yielding rapid proliferation of statutes and
unmanageable legal information costs. More disturbingly, codification
also fosters overcriminalization. While it may not be appropriate
to revert to the precodified regime now, reexamining the unintended
effects of codification can inform present and future choices for our
To some degree, money has always figured in criminal justice.
Early on, private enforcers of the criminal law received payments for
their work. Remuneration played a less explicit but still prominent
role in the nineteenth and twentieth centuries as public actors carried
out the work of criminal justice. Today, amid significant budget pressures
brought on by the Great Recession and the costs of running the
nation’s massive criminal justice apparatus, courts and other system
actors rely heavily on a growing number of legal financial obligations
(“LFOs”) as revenue sources. When this happens, courts and other
system actors become mercenaries, in effect working on commission.
While a significant body of literature now exists on the adverse
personal consequences of LFOs for offenders, this Article is the first
to offer a comprehensive examination of their legal, policy, and institutional
ramifications. To date, courts have provided little principled
basis to regulate the risks associated with LFOs; nor have governments
monitored their creation and use on a systematic basis. To mediate
these risks, and to create an institutional check on LFOs, the Article
proposes the use of LFO commissions. Commissions, because of
their system-wide vantage point, will be able to inventory and assess
the propriety of existing LFOs, and monitor their use going forward.
In so doing, they will lend order and transparency to LFOs, and mitigate
the risks they present to individual offenders and the integrity of
the criminal justice system as a whole.
BIASES THAT BLIND: PROFESSOR HYMAN AND THE UNIVERSITY
J. Mark Ramseyer | 2014 U. Ill. L. Rev. 1229
Download PDF | Abstract
This Essay is a response to Professor Hyman’s piece, Why Did
Law Professors Misunderestimate the Lawsuits Against PPACA. In
this Essay, Ramseyer argues that the statements made by law professors
about the constitutionality of the PPACA often reflected partisan
loyalty more than thoughtful legal analysis.
After the most significant Supreme Court oral argument of the
Roberts Court, elite law professors were stuck sitting on the sidelines
at the Hogwarts-esque castle that is Yale Law School, mystified at
how they were likely headed towards an unprecedented defeat. Rather
than accepting the validity of the arguments against Obamacare, leading
academics directed their ire towards the Solicitor General, characterizing
him as recalcitrant, shunning academics (unlike his predecessor),
and putting forth losing arguments in Court. Further, the
professors blamed the media (the New York Times in particular),
which gave a “false equivalence” to libertarian law professors and
made their arguments legitimate.
In writing Unprecedented: The Constitutional Challenge to
Obamacare, Josh Blackman conducted over one hundred interviews
with the lawyers, journalists, professors, and politicos involved on
both sides of the case. These insights shed light on the question Professor
David Hyman seeks to answer in his important and timely new
article: “Why Did Law Professors Misunderestimate the Lawsuits
against PPACA?” For this contribution to a symposium of replies in
the University of Illinois Law Review, Blackman highlights how the
sentiments at this Ivy-League confab served as a fitting testament to
the law professors’ “misunderestimation” of NFIB v. Sebelius.
UNDERSTANDING THE FAULTY PREDICTIONS REGARDING THE CHALLENGES TO HEALTH REFORM
James F. Blumstein | 2014 U. Ill. L. Rev. 1251
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In his recent article on the Patient Protection and Affordable
Care Act, David Hyman explores why law professors failed to accurately
predict the Supreme Court’s decision about the constitutionality
of the Act. The article is important in its own right, but it also exposes
broader problems in legal scholarship. Too often, legal scholars perform
their work backwards: they set out with a conclusion in mind,
then do the research to support that predetermined outcome.
This distortion of the research process is not intentional. Law
professors are rarely trained in how to design a proper research
methodology, and the different hats that law professors are forced to
wear necessarily generate confusion. But the consequences of this
distortion are real: law professors may lose their objectivity; they may
lose sight of contradictory positions; and in the case of public predictions—
like those on Obamacare—they may lose a good bit of face as
DID THE LAW PROFESSORS BLOW IT IN THE HEALTH CARE CASE?
Andrew Koppelman | 2014 U. Ill. L. Rev. 1273
Download PDF | Abstract
This Essay responds to David Hyman’s paper, Why Did Law
Professors Misunderestimate the Lawsuits Against the PPACA? In
his article, Professor Hyman criticized “the epic failure of law professors
to accurately predict how Article III judges would handle the
case.” The culprit, he concludes, was the experts’ insularity and arrogance.
This Essay offers a different explanation for the professors’
surprise at the seriousness with which the challenge was taken. The
oral argument caused great consternation precisely because judges
who had previously endorsed a broad view of Congressional power
now suddenly abandoned principles that had been unquestioned for
decades, and embraced limits that they had never before even mentioned
and that made no sense as a matter of either constitutional interpretation
or political philosophy. The explanation for the nearsuccess
of the challenge was a combination of libertarian prepossessions
and pure Republican party loyalty. This Essay concludes that
because such behavior is so far outside the bounds of normal, responsible
judicial action, the law professors did not anticipate it.
CONSTITUTIONAL PROGNOSTICATION: DOES ANYBODY KNOWS ANYTHING?
David Hyman | 2014 U. Ill. L. Rev. 1279
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Every client knows that his case is a winner, but practicing lawyers
know better. Indeed, practicing lawyers are extremely reluctant to
make predictions about how a case will come out—and when forced
to do so, they will invariably reference the hazards and uncertainties
of litigation, and hedge any predictions they make. When it came to
the legal challenges against the Patient Protection and Affordable
Care Act (“PPACA”), law professors who teach and write about
constitutional law at elite schools were far less circumspect. Indeed,
they seemingly competed with one another to demonstrate how confident
they were that the federal courts would reject the legal challenges
to PPACA in their entirety.
How did these confident predictions fare when the cases were actually
tried? Not all that well—if by “not all that well” we mean “the
complete repudiation of everything that elite law professors believed
and espoused.” The University of Illinois Law Review has now published
five responses to my article, by Professors Blackman, Blumstein,
Koppelman, Mazzone, and Ramseyer. In this short Essay, I
summarize each of these responses, and offer a short reply, organized
around two P’s (Predictions and Practical Knowledge), and one M
NAILS IN THE COFFIN OF THE VAMPIRE: PERSONAL SOVEREIGN IMMUNITY AND ITS TIMELY BUT INCOMPLETE DEATH
Nathaniel Koppel | 2014 U. Ill. L. Rev. 1293
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Judicial power has been a major factor in the curtailing of individual
rulers being criminally immune for their actions. Such power
has been exercised by courts of both nation and international origin,
such as the International Criminal Tribunal for Rwanda or the International
Criminal Court. The immunity this Note discusses must be
differentiated from head-of-state immunity in civil actions, which may
arise from wrongful activities, but where the stakes are for financial
penalties or other remedies rather than the personal liberty of the defendant.
A contemporary example is the recent civil litigation filed
against Mexico’s former President, Ernesto Zedillo, who was the last
leader of the Institutional Revolutionary Party. The U.S. State Department
has intervened in favor of Zedillo’s civil immunity from
suit, and this determination is considered highly persuasive though
not binding on federal courts; indeed, on July 22, 2013, the judge
dismissed the case.
Jurisdiction for courts is historically based on the individual’s
activities and presence within the area in which the police powers of
the state are enforceable. This is the territoriality jurisdiction, upon
which most criminal actions are based. A court may also try to exercise
jurisdiction where a citizen of the nation in which the court is
based, where the victim was harmed outside of the borders of the nation
or where the tortfeasor is a citizen. Several national courts—
based solely within the territorial jurisdiction of one country—have
attempted to try leaders of other nations for activities that did not
have any nexus to the country exercising jurisdiction. Universal jurisdiction,
as it is called, is both a historical practice and, today, a
novel measure engendering controversy. International courts, on the
other hand, base their jurisdiction on the accession of state parties to
the foundational treaties that create and govern the courts, and in other
instances on the jurisdictional power—directly or indirectly—
comes from a United Nations Security Council grant. By mutual assent in the form of treaty ratification and participation these member
states have bound themselves to various treaties.
This Note explores the evolution of head of state immunity for
criminal actions and the deconstruction of the doctrine over time. Using
individual case studies, the Note explores the way that head of
state criminal immunity has impacted rules throughout time. It further
examines how Medieval changes in criminal immunity for leaders
planted the seeds for change.
SUBSTANTIALLY UNEQUIVALENT: REFORMING FDA REGULATION OF MEDICAL DEVICES
Kyle Lennox | 2014 U. Ill. L. Rev. 1363
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Amidst today’s era of ever-growing advances in technology lies
an ever-increasing wealth of knowledge and information regarding
the human body and the innumerable health issues and risks people
encounter on a daily basis. Naturally, such advances in technology
have led to groundbreaking medical techniques and treatments. Indeed,
today’s market is host to a myriad of evolving drugs and medical
devices that allow patients the ability to put up stronger fights as
they battle for improved health conditions and enhanced qualities of
With one’s quality of life at stake, it follows that innovations in
the treatment of medical issues do not simply gain blind public acceptance
and implementation without first encountering strict scientific
and technical scrutiny. Or, at least, so one would think. Certainly,
as required by the FDA, drug manufacturers in the United States
must subject their products to the most stringent of regulations and
methodical testing and re-testing before receiving market approval.
Nevertheless, while such cautious and meticulous safeguards exist
among the regulation of drugs, regulation of medical devices has yet
to receive the same careful consideration and inspection.
In fact, the FDA approval process for medical devices has been
a topic of growing controversy. Over the past several years, reports
have surfaced of patients being seriously injured—and even killed—
by common medical devices, such as the seemingly harmless artificial
hip implant. Currently, the 510(k) premarket approval process remains
the means by which most new medical devices (approximately
ninety-five percent), including high-risk devices, are cleared for the
market. At the core of the 510(k) process exists the concept of “substantial
equivalence,” whereby a device shown to be substantially similar
to one already on the market will be approved without any clinical
trials proving safety or efficacy.
Although the United States has begun taking a few steps in the
right direction to protect its people from the risks associated with medical devices, the time has come for lawmakers to instigate a real
change in the medical device regulatory system. This Note begins
with an overview and comparison of the statutory history and regulatory
systems for drug and medical devices in the United States. Next,
this Note analyzes two different approaches to the 510(k) process that
currently controls market acceptance for the majority of new medical
devices. Finally, this Note demonstrates that a middle-ground approach
that alters portions of the premarket and postmarket regulatory
framework would be a beneficial way to begin the reformation
process. Specifically, this Note emphasizes the importance of striking
a balance between innovation, safety, and effectiveness when regulating
THE SECOND AMENDMENT BEYOND THE DOORSTEP: CONCEALED CARRY POST-HELLER
Nicholas Moeller | 2014 U. Ill. L. Rev. 1401
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This Note examines the approaches used by the Second and Seventh
Circuits when weighing the constitutionality of concealed carry
statutes. Moeller defines and explains the four differing types of concealed
carry statutes that have been used in the United States, then
tracks the use of those statutes through the country’s history. Next, he
considers the precise reasoning of the Second and Seventh Courts and
analyzes the Supreme Court’s precedent on the question, particularly
in Heller. Additionally, he explores the understanding of the Second
Amendment and its connection to concealed carry at the amendment’s
ratification before closing with a look at the empirical arguments
for and against concealed carry. Finally, Moeller recommends
adoption by the Supreme Court of the Second Circuit standard, acknowledging
the limited nature of any right to carry a weapon in public
and reserving the question of concealed carry to state legislatures.