University of Illinois Law Review最新文献

{"title":"The Regulation of Turnover on the Supreme Court","authors":"W. Farnsworth","doi":"10.2139/SSRN.639541","DOIUrl":"https://doi.org/10.2139/SSRN.639541","url":null,"abstract":"Over the past decade a dozen or so commentators have called for fixed terms of office for Supreme Court Justices. This Article presents a new and contrary analysis, treating life tenure as a regulatory regime that usefully can be unpacked into a number of components: (a) Justices serve into old age; (b) they serve for long periods of time; (c) they serve terms of varying lengths; (d) chances to appoint new Justices arise unpredictably; (e) chances to appoint new Justices arise irregularly; and (f) the Justices often decide for themselves when to leave the Court and thus who will pick their replacements. Age limits would target mostly (a), would have no effect on (c) or (e), and would work only partial or uncertain changes in the other respects just listed. Fixed terms have the potential to eliminate all of them. The Article concludes that age limits are worth serious consideration, but that most of the additional benefits provided by fixed terms would be illusory or likely to be offset by new problems they would cause, whether the new regime is adopted by constitutional amendment or (worse) by statute. The length of a Justice's tenure determines how often vacancies arise and thus how quickly electoral majorities can force tectonic changes in the law by remaking the Court. From this perspective the right length of judicial terms depends on how much we trust judgments by majorities over longer and shorter time periods; life tenure reflects a high and salutary distrust of short-term judgments. To state the point concretely, most proposals for fixed terms would ensure that every two-term president would substantially remake the Court, an outcome whose desirability is far from clear. The framework set out above also leads to various other conclusions. One is that the more carefully we try to distribute control over the political dimension of the Court's work, the larger that dimension is likely to get. Another is that in a regime of life tenure the Senate should play an active role in screening nominees to offset the arbitrary and lumpy way that nominating chances are distributed to presidents. Still another is that life tenure makes age more important than the other ways in which most nominees to the Court differ from their likely alternatives, and that a nominee's age thus deserves more attention than it currently gets.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67782589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction to the Symposium on Empirical and Experimental Methods in Law","authors":"Richard Mcadams, T. Ulen","doi":"10.2139/SSRN.419980","DOIUrl":"https://doi.org/10.2139/SSRN.419980","url":null,"abstract":"In April, 2001, the University of Illinois College of Law hosted a symposium on empirical and experimental methods in legal scholarship. This introduction explains that the organizers deemed the symposium to be timely in that there has been a significant increase in the volume and importance of empirical work related to legal topics and the first tentative steps in applying experimental methods to the study of law. The authors of this introduction elaborate on these trends and then briefly describe the articles that were presented at the symposium and subsequently published in the University of Illinois Law Review. The symposium had two principal parts. The articles in the first part lay out the general case for empirical and experimental work in law, explain some of the relevant techniques, and predict future trends in empirical legal research. The articles in the second part concentrate on empirical and experimental work in particular areas of the law, such as contract law, tort law, corporation law, legal history, criminal law and procedure, and public choice. Those articles summarize the work done thus far and the issues that that work has resolved and then lays out the questions that further empirical and experimental work must seek to answer. The symposium is dedicated to the memory of Professor Gary Schwartz, who participated and whose contribution on empirical work in tort law graces the proceedings.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2003-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68726829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Relevant is Jury Rationality","authors":"David Hoffman","doi":"10.2139/SSRN.386921","DOIUrl":"https://doi.org/10.2139/SSRN.386921","url":null,"abstract":"This essay reviews \"Punitive Damages: How Juries Decide\" by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms. While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human \"irrationality\". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula provides the true motivating force for the new paternalism in law and economics. Rather than asking if jurors act rationally (and punishing them if they will not), we should instead question what law and economists mean when they use the word \"rational\" as an initial matter.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2003-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68661383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Embryonic stem cell research: one small step for science or one giant leap back for mankind?","authors":"Consuelo G Erwin","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>At the forefront of modern debate over the ethical use of biotechnology is embryonic stem cell research. In this poignant analysis of its legitimacy, the author examines the history of this research in light of the United States' policy favoring the protection of human beings over scientific progress. Stem cells, which can divide in culture to create specialized cells in the human body, possess significant potential for curing disease, particularly when taken from human embryos. However, as evidenced by the research atrocities committed under the Nazi regime, the benefits of human research do not come without a cost to humanity. Recognizing this, the later trial of these scientists produced the Nuremberg Code, a set of natural law principles guiding future research on humans that continues to influence health policy decisions. Drawing on this background, the author first considers the appropriate legal status for a human embryo. Biologically, the characteristics of a human embryo place it between human tissue and a constitutional person. Judicially, the answer is even less clear. The author analyzes case law in the context of abortion and in vitro fertilization, as well as classifications by the common law, state legislation, and the National Bioethics Advisory Commission, to conclude that a human embryo should be subject to the same legal and ethical restrictions as any other \"human subject.\" Accordingly, the author argues that embryonic stem cell research violates the ethical standards and purposes of the Nuremberg Code and should be banned by federal legislation. Such a prohibition will fulfill the societal policy choice of protecting potential life and vulnerable human subjects.</p>","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24835055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who Should Regulate Class Action Lawyers","authors":"N. Moore","doi":"10.2139/SSRN.316639","DOIUrl":"https://doi.org/10.2139/SSRN.316639","url":null,"abstract":"Ethical issues arise frequently in class action litigation. These issues include conflicts of interest, solicitation, application of the no-contact rule, the reasonableness of attorneys' fees, and the attorney-witness rule. There has been considerable difficulty applying existing rules of conduct to these situations, partly because of confusion regarding the relationship among class counsel, the named class representatives and absent members of the class. Thus as to conflicts of interest - perhaps the most pressing problem facing class action lawyers - it has been said that a \"strict reading of the conflict of interest rules in class actions should be tempered, because the very nature of a class action is to combine many divergent interests.\" Despite the frequency with which the propriety of lawyers' conduct is litigated in class action lawsuits, the Ethics 2000 Commission - which recently proposed comprehensive amendments to the ABA Model Rules of Professional Conduct - declined either to adopt a separate class action rule or to add extensive commentary addressing the application of the rules to class action lawsuits. The purpose of this article is to explain and defend the Commission's decision, focusing on the issue that dominates many discussions of ethics and class actions - the difficulty of applying current conflict-of-interest rules to the myriad of conflicting interests that commonly arise in these lawsuits, including conflicts among class members, as well as between the lawyer and the class and between the class and third persons. Parts I and II of the article demonstrate that the scope of the problem is not nearly as large as it is commonly thought to be. Part I argues that the class should be viewed as an entity client, in which case it becomes clear that conflict of interest rules simply do not apply to conflicts within a class. Part II eliminates from consideration those conflicts - like conflicts arising from the size of the lawyer's fee - that are not addressed by conflict-of-interest doctrine because they are not unique to particular lawyers but are rather a type of agency problem that is endemic to legal practice. Parts III and IV of the article then turn to the types of conflicts that would be addressed by a \"strict reading\" of the conflict-of-interest rules. These conflicts include those arising from the lawyer's duties to other current clients, both inside and outside the class, as well as former clients. Part III argues that from the point of view of the non-class client, there is no reason to relax the current conflict rules. These clients are entitled to full disclosure of the conflict and an opportunity to find independent counsel. Part IV addresses these conflicts from the point of view of the class itself. Here it is argued that relaxation (or special application) of the conflict rules may be warranted in some cases, but that it makes sense to leave these issues to be resolved under class action law - under the rubric o","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2002-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.316639","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68568746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the ABA","authors":"George D. Brown","doi":"10.2139/SSRN.293202","DOIUrl":"https://doi.org/10.2139/SSRN.293202","url":null,"abstract":"This article considers the impact of recent Supreme Court cases on the reach and interpretation of federal criminal law, and the extent to which debates about that law should be more grounded in constitutional considerations. Special attention is paid to the problem of statutes with jurisdictional elements, using the Hobbs Act as an example. The article begins with what Professors Abrams and Beale call the \"great debate on the nature of the federal role.\" This debate is generally presented as a matter of how far Congress should go in developing our system of overlapping state and federal crimes. It was assumed, certainly before Lopez, that constraints on Congress were few. There is a wealth of scholarly analysis of Lopez and its impact on federal power. However, to some extent, the debate on federal criminal law remains cast as primarily one of policy. The article examines the report of the American Bar Association's Task Force on the Federalization of Criminal Law. It considers both the Report's analysis of the present system and its recommendations to Congress. The analysis reflects a strongly federalistic approach. However, despite federalistic premises, there is relatively little discussion of possible constitutional limits on Congress. After Lopez, these considerations would bolster the Report's analysis and conclusions. The article notes in particular the strength of an individual rights critique of the dual systems of criminal law, and suggests that it fits comfortably within classical notions of federalism as advancing protection of rights. The Report was written after Lopez but prior to the recent decisions in United States v. Morrison and Jones v. United States. The article discusses these cases in some depth. Morrison is presented as primarily a reaffirmation of Lopez. Of particular interest are the dissents of Justices Souter and Breyer; for example, the former criticized the current majority's approach as a doomed attempt to return to \"the federalism of some earlier time.\" In light of the sharp Lopez-like disagreements in Morrison, the decision in Jones is somewhat surprising. The specific result was the narrow construction of a federal arson statute. What is striking is that constitutional concerns played a substantial role in this construction and that Justice Ginsburg - a Lopez dissenter - cited Lopez as the source of these concerns. Jones involved a statute with a jurisdictional element. The article turns to the questions raised by such statutes, noting that the majority opinions in Lopez and Jones suggested a hospitable approach toward them. The general question is how to transpose limits on Congress' power to legislate over a class of activities to the context of individual instances of an activity. Serious theoretical problems are present. For example, should courts aggregate the effect of individual acts when a statute contains a jurisdictional element, thus suggesting a focus on the individual case? These problems are surfac","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2002-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68436995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The information revolution reaches pharmaceuticals: balancing innovation incentives, cost, and access in the post-genomics era.","authors":"A. Rai","doi":"10.2139/SSRN.254788","DOIUrl":"https://doi.org/10.2139/SSRN.254788","url":null,"abstract":"Recent developments in genomics--the science that lies at the intersection of information technology and biotechnology--have ushered in a new era of pharmaceutical innovation. Professor Rai advances a theory of pharmaceutical development and allocation that takes account of these recent developments from the perspective of both patent law and health law--that is, from both the production side and the consumption side. She argues that genomics has the potential to make reforms that increase access to prescription drugs not only more necessary as a matter of equity but also more feasible as a matter of innovation policy. On the production end, so long as patent rights in upstream genomics research do not create transaction cost bottlenecks, genomics should, in the not-too-distant future, yield some reduction in drug research and development costs. If these costs reductions are realized, it may be possible to scale back certain features of the pharmaceutical patent regime that cause patent protection for pharmaceuticals to be significantly stronger than patent protection for other innovation. On the consumption side, genomics should make drug therapy even more important in treating illness. This reality, coupled with empirical data revealing that cost and access problems are particularly severe for those individuals who are not able to secure favorable price discrimination through insurance, militates in favor of government subsidies for such insurance. As contrasted with patent buyouts, the approach favored by many patent scholars, subsidies would take account of, and indeed capitalize on, the institutional realities of health care consumption. These subsidies should, however, be linked to insurance regulation that works to channel innovation in a cost-effective direction by requiring coverage of drugs that provide significant benefit relative to their cost.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2001-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68199550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The information revolution reaches pharmaceuticals: balancing innovation incentives, cost, and access in the post-genomics era.","authors":"A K Rai","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Recent developments in genomics--the science that lies at the intersection of information technology and biotechnology--have ushered in a new era of pharmaceutical innovation. Professor Rai advances a theory of pharmaceutical development and allocation that takes account of these recent developments from the perspective of both patent law and health law--that is, from both the production side and the consumption side. She argues that genomics has the potential to make reforms that increase access to prescription drugs not only more necessary as a matter of equity but also more feasible as a matter of innovation policy. On the production end, so long as patent rights in upstream genomics research do not create transaction cost bottlenecks, genomics should, in the not-too-distant future, yield some reduction in drug research and development costs. If these costs reductions are realized, it may be possible to scale back certain features of the pharmaceutical patent regime that cause patent protection for pharmaceuticals to be significantly stronger than patent protection for other innovation. On the consumption side, genomics should make drug therapy even more important in treating illness. This reality, coupled with empirical data revealing that cost and access problems are particularly severe for those individuals who are not able to secure favorable price discrimination through insurance, militates in favor of government subsidies for such insurance. As contrasted with patent buyouts, the approach favored by many patent scholars, subsidies would take account of, and indeed capitalize on, the institutional realities of health care consumption. These subsidies should, however, be linked to insurance regulation that works to channel innovation in a cost-effective direction by requiring coverage of drugs that provide significant benefit relative to their cost.</p>","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25868740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The triumph of technology-based standards","authors":"W. Wagner","doi":"10.4324/9781315197296-8","DOIUrl":"https://doi.org/10.4324/9781315197296-8","url":null,"abstract":"","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70636726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Procreative torts: enhancing the common-law protection for reproductive autonomy.","authors":"K S Northern","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Roe v. Wade's twenty-fifth anniversary is likely to herald widespread scholarly commentary on the decision's continued vitality and the future of abortion in the United States. However, if such commentary focuses solely upon the constitutional dimensions and political aspects of a woman's right to privacy, an important dimension of this right will be overlooked. Few commentators have considered the extent to which tort law safeguards a woman's interest in reproductive autonomy. In this article, Professor Northern argues that the interest in reproductive autonomy has not yet received the full protection to which it is entitled and that tort law is poised to evolve distinct causes of action for the interference with procreative autonomy interests. Professor Northern begins with an overview of the medical and psychological literature on abortion-related risks. She goes on to discuss current trends in abortion malpractice litigation. The author then reviews the three basic types of malpractice causes of action--battery, negligence, and lack of informed consent--and explores their application to abortion malpractice claims. The focus of the article then shifts to the development of specialized procreative torts, and Professor Northern contends that courts should go beyond previous decisions to redress any substantial interference with procreative autonomy. Finally, the author asserts that legislative alternatives to the common-law development of procreative torts, such as right-to-know statutes, are less protective of women's interests. Professor Northern concludes that tort law could and should be used to more fully protect women's interests in procreative autonomy.</p>","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22409965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}