Volume 2015, Number 3
In his Article, Professor Tsesis examines the three dominant normative rationales for free speech in the United States. In turn, he critiques the theories that free speech furthers democratic institutions, that free speech furthers personal autonomy, and, lastly, that free speech advances knowledge by perpetuating a marketplace of ideas. While Professor Tsesis finds much to recommend in each theory, he also finds each lacking. He concludes that the present theories are too narrow to describe the range of concerns encompassed by the First Amendment’s Free Speech Clause. As such, Tsesis proposes that First Amendment doctrine should reflect a general theory of constitutional law that protects individual liberty and the common good of open society. To test his proposal, Tsesis applies it to the thorny free speech problems of defamation, intentional infliction of emotional distress, and incitement laws to demonstrate its normative superiority. In the end, Tsesis concludes that such a theory of free speech would better allow government actors to advance the underlying purpose of the Constitution, namely developing and enforcing policies conducive to the public good that safeguard individual liberties on an equal basis.
Lift Not The Painted Veil! To Whom Are Directors' Duties Really Owed?
Martin Gelter, Genevieve Helleringer | 2015 U. Ill. L. Rev. 1069
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In this Article, we identify a fundamental contradiction in the law of fiduciary duty of corporate directors across jurisdictions, namely the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves. American scholars tend to think of the board as a group of individuals elected by shareholders, even though it is widely acknowledged (and criticized) that the board is often a largely self-perpetuating body whose inside members dominate the selection of their future colleagues and eventual successors. This characterization, however, is far from a universal international truth, and it tends to be increasingly less true, even in the United States. Directors are often formally or informally selected by specific shareholders
(such as a venture capitalist or an important shareholder) or other stakeholders of the corporation (such as creditors or employees), or they are elected to represent specific types of shareholders (e.g., minority investors). The law thus sometimes facilitates the nomination of what has been called “constituency” directors. Once in office, legal rules tend to nevertheless treat directors as a homogeneous group that is expected to pursue a uniform goal. We explore this tension and suggest that it almost seems to rise to the level of hypocrisy: Why do some jurisdictions require employee representatives that are then seemingly not allowed to strongly advocate employee interests? Why can a director representing a specific shareholder not advance
that shareholder’s interests on the board? Behavioral research indicates that directors are likely beholden to those who appointed them and will seek to pursue their interests in order to maintain their position in office. We argue that for many decision making processes, it does not matter all that much what specific interest directors are expected to pursue by the law, given that across jurisdictions, enforcement of the corporate purpose is highly curtailed.
This Article explores the burgeoning practice of investing in people as if they were corporations. Sometimes pitched as a way to pay-off student loans or fund a business idea, people now have the
opportunity to sell shares of their future income to investors in exchange for cash today. Such transactions create a financial relationship closely analogous to that of a corporation and its shareholders. This Article considers how existing law applies to this new practice, and whether today’s rules are responsive to the unique challenges these arrangements present. I argue that, despite raising both constitutional and public policy concerns, these transactions should be permitted. Rather than outlaw such dealings, the nature of the financial relationships at issue means that they should be subject to securities regulation. Securities law alone, though, is insufficient; it is solely focused on protecting investors, leaving the broader social concerns raised by investing in people unaddressed and the more vulnerable parties to these transactions—those selling shares of themselves— without protection. To respond to these issues, I set forth a complementary regulatory template that would, among other things, require certain disclosures and set certain boundaries on these novel financial relationships.
This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government
statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in the overall volume and duration of federal civil litigation since 1986, suggests a proper methodology for measurement, and shows that the rate of increase of civil filings is less than the growth in the country’s population and the increase in judicial resources in civil cases, noting that any increase must be attributable to the criminal docket. Next, this Article studies the rates at which cases are terminated by various methods, noting today’s primary method is before pretrial with court action due to dispositive motions and judicial management. Third, this Article tracks and explains changes in the “Big Six” categories of civil litigation. Finally, this Article emphasizes the need to look at the government’s caseload statistics to note that the federal civil caseload has been relatively stable for twenty-five years.
Did Multicultural America Result From a Mistake? The 1965 Immigration Act and Evidence From Roll Call Votes
Gabriel J. Chin & Douglas M. Spencer | 2015 U. Ill. L. Rev. 1239
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Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the
Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed. Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a “majority minority” nation. In 1960, because U.S.
law restricted immigration by race, eighty-five percent of the population was non-Hispanic white. Since the enactment of the Immigration Act, the Hispanic and Asian American share of the population has more than quintupled, and by 2043 the Census Bureau projects that African Americans, Latinos, and Asian Americans together will comprise a majority of the population. Based on the legislative history, statements by government officials, and media reports, many scholars argue that Congress did not intend to change the racial demographics of the immigrant stream. Instead, these scholars argue that the diversification of the U.S. population was an enormous unintended consequence, one which Congress, had it appreciated what it was doing, might have thought better of. This Article introduces novel evidence to evaluate that claim: the roll
call votes of the House and Senate on these laws. The votes show that nearly identical coalitions of civil rights advocates supported all three laws while the same group of racially intolerant legislators opposed all three. This pattern suggests that all three laws had similar motivations and goals. We argue that the laws were inspired by sincere anti-racism and not cosmetic responses intended to have little practical effect.
Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses, each of which gives her an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting her another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases the prospect of losing the case for meritorious plaintiffs while decreasing it for defendants. This prodefendant bias forces plaintiffs to settle suits below their expected value. Worse yet, defendants can unilaterally reduce the suit’s expected value and extort a cheap settlement from the plaintiff through a strategic addition of defenses. We uncover and analyze this problem and its distortionary effect on settlements and primary behavior. Subsequently, we develop three alternative solutions to the problem and evaluate their pros and cons.
The Privilege of PR: Extending The Attorney-Client Privilege To Crisis Communications Consultants
Nisha Chandran | 2015 U. Ill. L. Rev. 1287
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The attorney-client privilege and work-product doctrine recognize the indispensability of free and frank communications between clients and attorneys for zealous legal counsel in an adversarial justice system. With the rise of citizen journalists seeking to expose wrongdoing and render justice in the “court of public opinion,” zealous legal representation today necessarily requires consideration of public relations (“PR”) strategies. While courts have recognized the importance of PR strategies in the rendering of legal advice, they have not consistently afforded attorney-client privilege or work-product protection to communications with external litigation or crisis PR specialists. This uncertainty must be resolved with an easily administrable rule upon which attorneys, clients, and PR specialists can rely when responding quickly to crises. This Note first surveys and categorizes the varying approaches courts have taken to address the issue and recommends that courts consider the presence of PR specialists as an exception to waiver and expand application of the attorney-client privilege to include legal communications between lawyers, litigations, and PR consultants.
As Easy As Shooting Fish in a Barrel? Why Private Game Reserves Offer a Chance to Save the Sport of Hunting and Conservation Practices
Alyssa Falk | 2015 U. Ill. L. Rev. 1329
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This Note argues that private game reserves can benefit the sport of hunting and conservation efforts simultaneously. Private game reserves benefit the sport of hunting by isolating animals on a large tract of land, while not capturing them, offering an alternative to decreasing public hunting lands while allowing the sport of hunting to continue. They may also stimulate conservation efforts by providing habitats in which animals can prosper. For these reasons, Illinois should amend its proposed hunting regulation bill to encourage private game reserves. In defending this conclusion, this Note analyzes the history of property rights in animals and the socio-political, economic, ethical, and environmental benefits of private game reserves.
Security Protocol: A Procedural Analysis of the Foreign Intelligence Surveillance Courts
Kate Poorbaugh | 2015 U. Ill. L. Rev. 1363
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This Note examines proposed changes to the Foreign Intelligence Surveillance Court following the NSA leaks by Edward Snowden. Specifically, it analyzes proposed procedural changes to the Foreign Intelligence Surveillance Act that attempt to provide a clear legal standard and effective oversight to ensure that intelligence activity does not undermine the democratic system or civil liberties. This Note argues that a public advocate should be added to FISC proceedings to represent the public’s privacy and civil liberty interests and allow FISC final orders granting surveillance to be appealed to the Foreign Intelligence Surveillance Court of Review by a public advocate. In addition, this Note recommends that changes be made to the FISCR so that it may handle a larger caseload and become a more permanent entity with full-time judges.