The Introduction and articles on Governance from this symposium can be found in Part I, located in the previous issue (85 Chi.-Kent L. Rev 469 (2010)).

Wendy C. Gerzog, The Times They Are Not A-Changin’: Reforming the Charitable Split Interest Rules (Again), 85 Chi.-Kent L. Rev 849 (2010).

This article will review the history of the tax treatment of charitable split interest gifts, explain the inequities that Congress both cured and generated in its 1969 reforms, and propose solutions that are consistent with the goals of the 1969 legislation. The article discusses variations in the 1969 definition of a charitable split interest, which, because of the enacted statutory language, applies in instances where there is no abuse potential. The inequity produced by that definition penalizes the donor and flouts the rationale behind the 1969 legislation. By contrast, the creation of some required statutory forms of charitable split interests in trust, enacted to prevent abuse, have themselves created new opportunities for donors to evade taxes in ways unanticipated by the 1969 Act. In the spirit of the 1969 law, the article makes several recommendations, including proposals: (1) to modify the statutory definition of charitable split interest to provide an exception from the statutory requirements where there is no statutory mandate to calculate value by means of the actuarial tables under section 7520 and no abuse potential; and (2) to eliminate (or to restrict the tax avoidance aspects of) some of the charitable split interest in trust devices created in the 1969 legislation.

Terri Lynn Helge, The Taxation of Cause-Related Marketing, 85 Chi.-Kent L. Rev 883 (2010).

With the economy in turmoil, charitable organizations are looking to nontraditional sources of financing to supplement contributions and fee-based revenues. One potentially lucrative source of revenue stems from cause-related marketing. Cause-related marketing is the public association of a for-profit company with a charitable organization to promote the company’s product or service in order to raise money for the charitable organization. Introduced almost twenty-five years ago, cause-related marketing has now become a $1 billion a year industry. Cause-related marketing has evolved beyond mere use of a charitable organization’s name to an apparent union for the purpose of promoting products that carry the charitable organization’s brand or message. While the academic literature discusses whether cause-related marketing alliances are ethically and socially desirable, it does not address whether the application of the federal income tax rules to cause-related marketing alliances adequately captures what we accept as valid charitable activities. Despite the widespread success of cause-related marketing, the IRS has issued little guidance on acceptable practices by charitable organizations engaged in cause-related marketing. An analysis of the application of the unrelated business income tax regime and the prohibition on private benefit to cause-related marketing alliances reveals that modifications to existing Internal Revenue Service guidance should be made based on social, economic and tax theory. This analysis concludes with a proposal for a framework within which such guidance should be considered.

Ray D. Madoff, What Leona Helmsley Can Teach Us About the Charitable Deduction, 85 Chi.-Kent L. Rev 957 (2010).

Leona Helmsley named a number of beneficiaries under her will (both human and canine), but among the unnamed beneficiaries are scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought in to high relief policy issues regarding the appropriateness of the unlimited charitable deduction. I argue that these concerns are equally applicable, albeit less obvious, when it comes to more traditional charitable bequests. In this paper I will discuss the appropriateness of the unlimited estate tax deduction (particularly in light of the broad definition of what constitutes charitable) and the issues raised by perpetual private foundations.

Susan N. Gary, The Problems with Donor Intent: Interpretation, Enforcement, and Doing the Right Thing, 85 Chi.-Kent L. Rev 977 (2010).

In a number of recent controversies, the way the charities involved handled restricted gifts resulted in unhappy donors, negative publicity, and costly litigation. This paper examines several of these cases and then argues that donor intent is often more difficult to divine that many people have stated.

The law requires that a charity give effect to a restriction imposed by a donor. This paper examines the legal rules that govern donor-restricted gifts and considers the other reasons a charity will, in most cases, follow the donor’s intent. The paper then describes several circumstances in which donor intent may not be clear or easy to determine. A donor’s intent may be stated in general terms or the meaning of the ideas the donor had may have changed over time. If the donor is no longer alive, family members may remember the donor’s intentions in ways that conflict with the charity’s understanding of the gift. The passage of time not only makes the intent of the original donor more difficult to ascertain, but may also make changes in the original restrictions appropriate.

This paper makes suggestions for donors, charities, and the lawyers representing both in connection with restricted gifts. A donor’s intent may not be as clear as either party thinks, and trying to pin down a donor’s intent with respect to a particular gift may be more difficult – and less sensible – than an advisor may at first imagine. The paper makes specific suggestions for ways to address donor intent in a gift agreement and suggests that by working collaboratively donors and charities may better accomplish the worthy goals they all have in mind.

Joshua C. Tate, Should Charitable Trust Enforcement Rights Be Assignable?, 85 Chi.-Kent L. Rev 1045 (2010).

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” Joshua Tate’s paper will address the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.

Douglas R. Garmager, Discrimination Outside of the Office: Where to Draw the Walls of the Workplace for a “Hostile Work Environment” Claim Under Title VII, 85 Chi.-Kent L. Rev 1075 (2010).

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual” on the basis of sex. Accordingly, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court recognized that sex discrimination in employment can give rise to a hostile work environment claim under Title VII. The scope of a hostile work environment claim has not been interpreted uniformly by the lower courts, however, as a circuit split exists today over whether conduct occurring outside the workplace is relevant to a hostile work environment claim. This note examines Title VII’s legislative history, Supreme Court opinions, cases on both sides of the circuit split, and other materials, arguing that conduct outside the workplace is relevant to a hostile work environment claim and that the current liability standards for employers sufficiently protect their interests without unduly interfering with Title VII’s remedial purpose.

Victoria Hayes, Human Trafficking for Sexual Exploitation at World Sporting Events, 85 Chi.-Kent L. Rev 1105 (2010).

Many members of the international community fear that world sporting events, such as the Olympics and the World Cup, create surges in human trafficking for sexual exploitation, causing women and girls to be exploited for commercial sex while the rest of the world celebrates athleticism and sport. These fears have sparked heated debate about the measures hosting countries should take to prevent human trafficking at these events and the role prostitution policies play in combating human trafficking. In the lead-up to the 2010 Olympics in Canada and the 2010 World Cup in South Africa, politicians in both countries proposed legalizing prostitution as a means of combating human trafficking at the events. This Note explores the connection between prostitution laws and sex trafficking, as well as the link between world sporting events and sex trafficking, with specific reference to preparations for the recently completed 2010 Olympics and the upcoming World Cup. Drawing on research about human trafficking at the 2004 Olympics in Athens, the 2006 World Cup in Germany, and the 2008 Olympics in Beijing, this Note argues that specific anti-trafficking efforts are more effective than prostitution policy reform in combating human trafficking. Finally, this Note critiques Canada’s anti-trafficking related preparations for the 2010 Olympics and provides general recommendations for strengthening South Africa’s anti-trafficking efforts before the 2010 World Cup.

Brian S. Kaunelis, Securing Global Trademark Exceptions: Why the United States Should Negotiate Mandatory Exceptions into Future International Bilateral Agreements, 85 Chi.-Kent L. Rev 1147 (2010).

In December 2007, the European Union and the CARIFORUM States concluded a bilateral economic partnership agreement that included a mandatory fair use exception to trademark owners’ rights. The EC-CARIFORUM Agreement is the first agreement that mandates the inclusion of Article 17 of the World Trade Organization’s Agreement on Trade-Related Intellectual Property Rights and requires an exception to trademark rights. The push to balance international trademark owners’ rights has begun, and this Note will detail why the United States should follow the European Union’s lead and negotiate mandatory trademark exceptions into future bilateral agreements.

Vincent M. Smolczynski, “Willful Patent Filing”: A Criminal Procedure Protecting Traditional Knowledge, 85 Chi.-Kent L. Rev 1171 (2010).

This article explores the interaction between current intellectual property regimes and traditional knowledge and concludes that national laws currently in place inadequately protect traditional knowledge holders. When property rights are granted on traditional knowledge, the effects can extend not only to the indigenous communities, but to the surrounding ecosystems and the global market. Commercialization and increased demand leads to shortages in natural resources and increased prices. Therefore, in order to ensure that patent applicants are deterred from acquiring property rights in traditional knowledge, as well that traditional knowledge holders receive proper benefits for their labor and knowledge, this article advocates for an addition to the TRIPS Agreement under Article 61. The amendment would mandate that signatory nations implement criminal procedures and penalties to be applied in cases where a patent is knowingly obtained, or an application for patent is knowingly filed, for subject matter that is not novel or non-obvious based on the prior use of traditional knowledge. To ensure that traditional knowledge may be made available to the public, the amendment would further recognize a quais-right of the traditional knowledge holders which permits the community to grant to consent to access and use in return for shared benefits arrangements.

Carolyn E. Sorock, Closing the Gap Legislatively: Consequences of the Lilly Ledbetter Fair Pay Act, 85 Chi.-Kent L. Rev 1199 (2010).

With the Lilly Ledbetter Fair Pay Act of 2009, Congress both reversed the result of the widely criticized Ledbetter Supreme Court case and expanded the statute of limitations for all employment discrimination claims relating to compensation. Under the Act, a compensation-based employment discrimination claim’s statute of limitations period of three hundred days begins to run whenever an employee is “affected” by a discriminatory practice. The language of the Act is far-reaching, but just five months after the Act was signed into law, the Supreme Court stepped in again to narrow the Act’s application to pension benefits in AT&T Corp. v. Hulteen. This note examines the Lilly Ledbetter Fair Pay Act and analyzes its potential legal implications, in light of its judicial precedent in the Ledbetter and Morgan cases and subsequent narrowing in the Supreme Court’s Hulteen case, as well as its possible economic implications for employers and employees.

Below is a table of contents for Volume 85, Number 2 of the Chicago-Kent Law Review. Eventually, we will be placing this table of contents, along with copies of each paper, in the archives.

Anne-Marie Rhodes, The Law of Philanthropy in the Twenty-First Century: An Introduction to the Symposium, 85 Chi.-Kent L. Rev. 469 (2010)

Lloyd Hitoshi Mayer & Brendan M. Wilson, Regulating Charities in the Twenty-First Century: An Institutional Choice Analysis, 85 Chi.-Kent L. Rev. 479 (2010)

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best regulators of charity governance would most likely be state-level government agencies that work with but have a limited degree of independence from the state attorneys general. The article also determines that the best way to ensure adoption of this institutional choice—and limit potential weaknesses—is for the federal government to provide dedicated funding for such agencies, which could be obtained through the already existing private foundation investment income tax.

Melanie B. Leslie, Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts of Interest, 85 Chi.-Kent L. Rev. 551 (2010)

Fiduciary duty law seeks to minimize agency costs that occur when the interests of the agent and principal diverge. That law is context specific: the substance depends upon the objectives of the fiduciary relationship and the degree to which other forces, such as markets and social norms, help align the incentives of principal and fiduciary.

Trust law has no business judgment rule, and prohibits even “fair” conflict of interest transactions unless they are approved by fully informed beneficiaries. Strict rules bolster norms against self-dealing and compensate for trust beneficiaries’ poor monitoring abilities and inability to exit or diversify. Corporate fiduciary duty law is more relaxed, and does not require the board to obtain advance approval prior to engaging in “fair” transactions with board members. The standard is more generous because diversified shareholders want to encourage risk, and because market forces pressure corporate directors to avoid conflicts that are not in the corporation’s best interests.

Neither monitors nor markets exert meaningful pressure on nonprofit fiduciaries. When nonprofit corporations function effectively it is because the most vocal directors have internalized fiduciary duties as social norms. Fiduciary duty law in the nonprofit context should therefore seek to support and reinforce fiduciary duties as social norms.

Trust law teaches that clear rules are superior tools for generating and supporting social norms. That lesson has been lost on policy makers, who have transplanted fuzzy corporate law fiduciary duty standards to the nonprofit context. The result has been the erosion of the fiduciary duty of loyalty.

Evelyn Brody & John Tyler, Respecting Foundation and Charity Autonomy: How Public is Private Philanthropy?, 85 Chi.-Kent L. Rev. 571 (2010)

Recent years have seen a disturbing increase in legal proposals by the public and government officials to interfere with the governance, missions, strategies, and decision-making of foundations and other charities. Underlying much of these debates is the premise—stated or merely presumed—that foundation and charity assets are “public money” and that such entities therefore are subject to various public mandates or standards about their structure, operations, and policies. The authors’ experiences and research reveal three “myths” that, singly or collectively, underlie claims that charitable assets are public money. The first myth conceives of charities as shadow governments due to the requirement that they have public purposes and are subject to attorney general parens patriae oversight. The second myth asserts that, because philanthropies exist under state charters, they are government agencies, “state actors,” or quasi-public bodies subject to constitutional constraints or accountable to the public in the same way as is government. The third myth asserts that revenue forgone on deductible charitable contributions and the tax exemption are a contribution from the state that entitles the state to a say in nonprofit governance structure, operations, and decision-making. In debunking these myths, this paper demonstrates the lack of legal support for the “public money” view of charitable assets.

Dana Brakman Reiser, Governing and Financing Blended Enterprise, 85 Chi.-Kent L. Rev. 619 (2010)

The image of nonprofit and for-profit as dual and exclusive categories is misleadingly simple. This blurring of the boundary between for-profit and nonprofit has gone on for years and appears only to be gaining steam. Yet, traditionally, the law has put to organizations a choice of either the nonprofit or for-profit form of organization. In the first decade of this century, organizational law is beginning to catch up with the boundary-blurring trend. In the United States and abroad, legislatures are creating new forms for blended enterprise, including several U.S. states’ low-profit limited liability company (the “L3C”) and the community interest company (the “CIC “) in England and Wales. Along with these more formal efforts, at least one self-regulatory scheme provides a framework to fashion a blended form (the “B Corporation”) under traditional state for-profit corporation law. This article will describe and compare these forms and evaluate whether they can enhance the governance and finance of blended enterprise.

Mark Sidel, Recent Developments in Community Foundation Law: The Quest for Endowment Building, 85 Chi.-Kent L. Rev. 657 (2010)

Using legal and judicial means to build community foundation assets are the focus of some of the more interesting recent developments in community foundation law. This article discusses a recent state supreme court case that pitted a community foundation against a trustee bank for control over the management and investment of a trust for the benefit of the community foundation; state incentive programs for community foundations, including tax credits and the use of gambling revenues to build community foundation assets; the growth of community foundation self-regulation; and other new developments that converge on a key issue—building endowment—that faces the vast majority of America’s under-funded, under-endowed community foundations in a time of growing community and social needs.

Articles on Tax and Donor Intent from this symposium can be found in Part II, located in the next issue, Volume 85, Number 3.

Richard B. Freeman, Reforming the US Economic Model After the Failure of Unfettered Financial Capitalism, 85 Chi.-Kent L. Rev. 685 (2010)

This Article is based on the 2009 Kenneth M. Piper Lecture at the Chicago-Kent College of Law. The 2008–2009 financial meltdown and ensuing economic developments have shown three things about modern capitalism: First, that unfettered financial markets remain the Achilles heel of capitalism with the capability of destroying economic stability and bringing misery to all. Second, that high-powered incentives paid to “talent” in finance are a fundamental cause of the excessive risk-taking, chicanery, and financial fraud that contributes to instability. Without a new compensation system that rewards banking and finance for contributing to sustainable economic progress rather than for economic rent-seeking and a renewed regulatory system that punishes chicanery and financial crime and near-crime, there is unlikely to be any change in the behavior of the financial world. And finally, that in the wake of the implosion of laissez faire finance, labor and allied groups have to participate in rewriting the rules and regulations governing banking and finance so that finance serves the real economy rather than the reverse. Accordingly, if Wall Street insiders continue to make the key policy decisions alone, banking and finance will remain a loose cannon on the good ship Capitalism, sure to crash the ship yet again.

Jessica A. Bejerea, It is Not Too Late for the Health Savings Account, 85 Chi.-Kent L. Rev. 721 (2010)

The Health Savings Account (HSA), a tax-advantaged savings vehicle for paying medical expenses, paired with the high deductible health plan, has become a popular means of controlling health care costs and insurance premiums. Recently Congress attempted to increase the attractiveness of the HSA and the high deductible health plan when it amended HSA law in 2006. This note examines these recent changes and argues that certain provisions of the amendments, along with IRS guidance, have instead complicated the rules for HSAs and have neglected to resolve at least one important issue.

Michael Borella, Food Allergies in Public Schools: Toward a Model Code, 85 Chi.-Kent L. Rev. 761 (2010)

Sufferers of food allergies can experience anaphylactic shock, and even death, within minutes of exposure to allergens such as peanuts, soy, wheat, eggs, milk, and fish. This causes unique problems when the food allergy sufferers are children in public schools. The widespread availability of these allergens in school lunchrooms and classrooms places children with food allergies in danger while they are entrusted to the government’s care. Since these children, especially young children, cannot be relied upon to be able to avoid allergens on their own, reasonable and logical laws should be in place to ensure that children are safe while in school. However, such laws do not exist. Accordingly, this note provides an overview of the insufficiency of today’s disparate federal and state laws, and proposes a model code that is designed to protect children with food allergies.

Jocelyn Floyd, The Power of the Parental Trump Card: How and Why Frazier v. Winn Got It Right, 85 Chi.-Kent L. Rev. 791 (2010)

When two fundamental rights are in conflict, such that the protection of one requires the infringement of the other, courts must weigh those rights against each other to determine which is ultimately greater. In Frazier v. Winn, the Eleventh Circuit dealt with precisely such an issue: specifically, the rights of parents pitted against those of their children. This note explores the history of both parental rights and student’s rights in school to show why the court appropriately affirmed that children’s right to free speech is only as expansive as their parents allow, justified by the parents’ fundamental right to rear their children as they see fit.

Tess Slattery, Freedom From Compulsion, 85 Chi.-Kent L. Rev. 819 (2010)

A recent Eleventh Circuit case, Frazier ex rel. Frazier v. Winn, upheld as facially constitutional a Florida statute that requires a student to obtain parental permission before abstaining from participation in the Pledge of Allegiance. This note argues that the court reached the wrong conclusion because it failed to properly weigh the students’ right to free speech against the parents’ right to control the upbringing of their children. This note argues that Justice Breyer’s framework for balancing conflicting rights should be adopted for use in this context. By applying Justice Breyer’s balancing test, the Florida statute should be found to be unconstitutional because the requirement of parental permission to refrain from participation in the Pledge of Allegiance is a substantial interference with a student’s First Amendment rights while there is minimal interference with parental control by allowing students to choose for themselves whether or not to participate in the Pledge of Allegiance.

In addition to the four student papers accepted earlier, the papers below were also accepted for publication in volume 86 of the Chicago-Kent Law Review. Congratulations to these authors and thanks to all students who submitted papers for review.

Congratulations to the following Track One students whose notes and comments were selected for publication!

All law review member are invited to tonight’s social. It takes place from 6pm-9pm in the 10th floor reception room. Food and drinks will be provided.

Come out and meet the rest of the staff. In particular, there will be plenty of opportunities to discuss positions available for the 3L year, as well as the upcoming election process.

Below is a tentative table of contents for Volume 85, Number 1 of the Chicago-Kent Law Review. Eventually, we will be placing the final table of contents, along with copies of each paper, in the archives.

Morgan Cloud, Innocence, Evidence, and the Courts, 85 Chi.-Kent L. Rev. 3 (2010)

Larry Laudan and Ronald J. Allen, Deadly Dilemmas II: Bail and Crime, 85 Chi.-Kent L. Rev. 23 (2010)

This is another in a series of papers examining the interaction between the implications of the deadly dilemma of governing that virtually all governmental action involves unavoidable conflict between equally laudatory goals and the conventional way of thinking about social errors. Typically the pursuit of any particular goal has as its consequence precisely the kind of harm that is desired to be avoided. For example, serious felons are sent to prison in part to protect innocent parties from their future predations, but those same felons often prey upon fellow prisoners, including murder. Moreover, felonies committed in prison only begin the catalogue of “wrongful” consequences to “innocent” individuals flowing from incarceration. If it is sufficient to end a social practice because it causes innocents to die, then we are obliged to eliminate prisons — and hospitals for that matter. The point cuts even deeper. Virtually every governmental decision affects who will live and die. Whether roads are built, where, and to what standard of safety do this. Decisions on welfare programs do, as does the allocation of medical research funds or the choice to fund research instead of primary education, or vice-versa, or whatever. To the extent such matters are considered in the literature at all, the explicit treatment of errors by both the legal system and legal scholars has been curious both analytically and normatively. The simplest example of this is the virtually exclusive focus of both on false positives (false findings of liability, civil or criminal) and false negatives (false findings of no liability). This neglects two fundamental issues: first that there are four possible findings at trial, the two mistakes and the two possible correct verdicts; second and even more importantly, that sensible social regulation must be concerned not just with outcomes at trial and the resultant effect on litigation behavior but also with the effect of trial decisions on primary behavior. In sum, we suggest that sensible social policy must involve an analytically sound approach to decisions involving such deadly dilemmas. As we have demonstrated in previous work, the failure to do so leads to both analytically and morally perverse results in some areas. We demonstrate that same failure here in the context of pre-trial release decisions. We also suggest a modification of current practice that might ameliorate costs without altogether eliminating bail.

Janet C. Hoeffel, The Roberts Court’s Failed Innocence Project, 85 Chi.-Kent L. Rev. 43 (2010)

In this article, Professor Hoeffel discusses the Roberts Court’s obvious struggle with its actual innocence jurisprudence. It is a struggle that was only theoretical in the days before DNA exonerations. While the Court has had two opportunities to clarify the role of wrongful convictions in the criminal justice system, it has declined to do so. In House v. Bell, the Court ratcheted up the standard of proof for freestanding constitutional claims of innocence to a level no petitioner could understand, much less meet. Then, in District Attorney’s Office for the Third Judicial District v. Osborne, the Court held that the one manner in which a litigant might in fact meet that standard – through conclusive DNA testing of the state’s evidence – was not constitutionally mandated. Through analysis of these two cases and two other cases that came before the Roberts Court, Professor Hoeffel concludes that the majority of the Court is so cowed by the power of DNA that it has exaggerated its potential impact on the criminal justice system. As a result, it has closed doors on the few men and women who can prove their innocence.

Arnold H. Loewy, Taking Reasonable Doubt Seriously, 85 Chi.-Kent L. Rev. 63 (2010)

In recent years, we have a discovered a spate of factual innocent people who have been convicted. In this article, Professor Loewy contends that the failure of juries to take reasonable doubt seriously contributes to this phenomenon. Professor Loewy via an illustrative fictitious case explains that juries might be reluctant to give the defendant the benefit of a reasonable doubt because of their concern about putting dangerous criminals back on the street. He then asks whether we really want juries to take reasonable doubt seriously. Concluding that we do, he examines how we can do that. Loewy concludes that the best way to that is with a jury instruction that sharply distinguishes proof beyond a reasonable doubt from clear and convincing evidence. Only if the jury really understands that dichotomy is it likely to understand that it cannot convict merely on clear and convincing evidence. The article suggests an instruction that would accomplish this purpose. The author concludes that while this instruction is not constitutionally mandated, it is constitutionally permissible and should be adopted.

Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chi.-Kent L. Rev. 77 (2010)

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this essay presents a new dimension to this issue – the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling – all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes. This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

Kent Roach, The Role of Innocence Commissions: Error Discovery, Systematic Reform or Both?, 85 Chi.-Kent L. Rev. 89 (2010)

This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Criminal Cases Review Commission and the North Carolina Innocence Inquiry Commission are examined as examples of the former type of commission while Canadian public inquiries and commissions in Illinois, California and Virginia are examined as examples of the latter type of commission. Innocence commissions have had difficulties combining error correction and systemic reform because there are differences and tensions between the two functions. Error correction commissions play a quasi-judicial role while systemic reform commissions often engage in political compromise and advocacy. Although there is a need for both error correction and systemic reform with regard to wrongful convictions, more attention needs to be paid to the precise objectives and limitations of innocence commissions as new and fragile criminal justice institutions.

Lawrence Rosenthal, Second Thoughts on Damages for Wrongful Convictions, 85 Chi.-Kent L. Rev. 127 (2010)

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. In this article, Professor Rosenthal argues that the case for providing such compensation is deeply problematic, whether advanced in terms of no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back such liability-producing conduct to optimal levels; this rationale has little application to the criminal justice system. Instead, a regime of strict liability would operate as a kind of perverse wealth transfer – from those most in need of government assistance to the exonerated – without reducing the risk of error in the criminal process. Given the nature of this wealth transfer, the case for compensation as a means of providing social insurance against wrongful convictions is equally flawed. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — a skepticism that Professor Rosenthal argues is warranted. Even if the law were to remove all doctrinal objections to fault-based liability for wrongful prosecutions and convictions, such a regime could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction. Instead, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.

Victor Streib, Intentional Wrongful Conviction of Children, 85 Chi.-Kent L. Rev. 163 (2010)

Intentional wrongful convictions in cases involving child offenders may occur when judges have insufficient evidence proving any crime by the child but feel a strong need for the courts to intervene in the child’s life and behavior. They believe that the negative factors attached to such a status are worth suffering if the child gains entry into a desired state program. This is wrongfully convicting the child “for the child’s own good.” Juvenile court judges too often receive knowledge of the child’s background and previous record prior to any trial or hearing in order to devise the best result for the child. A jury, however, would never be given that information prior to the trial. The solution here may be to provide for jury trials in juvenile court. Another cause of these cases is the defense attorney who does not challenge the state’s prosecution zealously but who cooperates with the state in shunting the child off to the desired program. We also may not be taking seriously the requirement that children’s offenses be proven beyond a reasonable doubt, and we should seek means to better insure that it is maintained. Many jurisdictions limit access to the most desirable treatment programs to those children found guilty of an offense in juvenile or criminal court. Simply being found to be a status offender or a child in need of services is not sufficient for admission. This might tempt a judge to wrongly convict a child intentionally as a justifiable means to that desirable end.

Russell L. Weaver, Reliability, Justice and Confessions: The Essential Paradox, 85 Chi.-Kent L. Rev. 179 (2010)

This paper deals with the issue of “reliability” in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found “innocent” of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions process that lead to invalid confessions.

Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191 (2010)

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of the Fourth Amendment and, consequently, fewer cases worthy of Supreme Court review. If these premises hold true, the Fourth Amendment, while remaining the most commonly implicated aspect of the Constitution, may lose its status as the most frequently litigated part. What will remain is a residual, complex jurisprudence with little relevance.

Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209 (2010)

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority’s apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part III offers a prediction of a somewhat different sort. If the Court were to abolish the exclusionary rule, the exclusionary rule would return, in some form, in a decade or so. Prediction is hazardous. I hazard, however, the prediction that the Roberts Court will not abolish the Fourth Amendment exclusionary rule.

Ronald J. Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt, 85 Chi.-Kent L. Rev. 241 (2010)

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens’ rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the evidence, and whether the admission of the evidence would seriously damage the integrity of the proceedings. In order to protect citizen’s rights, this paper also proposes that Fourth Amendment violations be treated like direct criminal contempt of court. Thus, if a judge determines that there has been a serious Fourth Amendment violation, the offending officer could be summarily punished. Inasmuch as this punishment can be comparatively severe and is directly aimed at the offending officer, it should have a strong deterrent effect. Moreover, since a judge would be empowered to impose a penalty with minimal process beyond that which would have already taken place, it would be a more reliable deterrent than even the existing exclusionary rule.

Scott E. Sundby, Mapp v. Ohio’s Unsung Hero: The Suppression Hearing as Morality Play, 85 Chi.-Kent L. Rev. 255 (2010)

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court’s rulings have made clear, any reevaluation of the exclusionary rule’s future will be conducted under the now familiar rubric of whether the rule’s “benefit” of deterring police misbehavior outweighs the “cost” of lost evidence and convictions. This essay argues that if any such reevaluation does occur, the Court must take into account something overlooked in evaluations of the past: the benefits of a suppression hearing itself. The hearing acts much like a morality play for those involved in the nitty gritty of law enforcement – police, judges, prosecutors, and defense attorneys – by instructing everyone involved both as to the Fourth Amendment’s rules and why those rules are of a constitutional magnitude mandating honor and respect. And because the exclusionary rule reaches a wide variety of police behavior – unlike civil suits and disciplinary proceedings which reach only the most egregious instances of misbehavior – the suppression hearing becomes an invaluable public forum for providing transparency and promoting police compliance with the Fourth Amendment. In short, the suppression hearing is the exclusionary rule’s unsung hero, and in the end offers the Court a means to find the truest measure of the exclusionary rule’s costs and benefits.

Andrew E. Taslitz, Fourth Amendment Federalism and the Silencing of the American Poor, 85 Chi.-Kent L. Rev. 277 (2010)

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore’s person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution’s Fourth Amendment. Central to the Court’s reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment’s meaning vary from place to place. Professor Taslitz argues in this essay, however, that the Amendment’s meaning does, and should, sometimes so vary. Indeed, he explains, Moore itself illustrates how a place-blind jurisprudence can disempower poor racial minorities, whose voice, articulating a more therapeutic approach to crime, is heard more clearly by local legislatures than by the more distant and punitive state ones. Permitting the state to declare the injustice of arrest for minor offenses while providing no remedy when that injustice nevertheless occurs frees police to arrest the politically weak for such offenses while merely citing the politically powerful. A more geography-centric view of the Fourth Amendment would minimize these and other risks of unequal and unreasonable state invasions of the privacy, property, and locomotive rights that the Amendment protects.

Craig M. Bradley, Melendez-Diaz and the Right to Confrontation, 85 Chi.-Kent L. Rev. 315 (2010)

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment’s command that “In all criminal prosecutions the accused shall enjoy the right…to be confronted with the witnesses against him….” On it’s face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but limited the right of cross-examination to “testimonial” but not “nontestimonial” hearsay. That is, testimony as to “statements made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial,” including police interrogations, are “testimonial” and cannot be used unless the declarant is available for cross-examination. On the other hand, “nontestimonial” statements, such as 911 calls or other “statements about events as they were actually happening” may be presented at trail with no need for cross-examination. In Melendez Diaz v. Massachusetts, the question was whether the testimony of experts who had performed scientific tests was “testimonial” or “nontestimonial.” Since such tests are performed for use at a later trial, the Court, under the above Crawford formulation, concluded that they were “testimonial” and consequently couldn’t be used unless the expert who performed the tests was available to testify at trial. This article, while agreeing with the outcome in Melendez-Diaz, argues that the testimonial/non-testimonial distinction makes no sense. As is evident from the Sixth Amendment itself, it applies to all testimony in court. However, as the Supreme Court has recognized in other cases, notably Scott v. Illinois, limiting the Sixth Amendment right to trial by jury to cases where imprisonment is an option, sometimes practical concerns must limit recognition of an Amendment’s reach. Accordingly, this article proposes that the right to confront witnesses be limited to cases in which the defendant is able to demonstrate a need to cross-examine witnesses, rather than the rule of Crawford that limits the right based on the nature of the evidence itself. This would be both truer to the language of the Amendment and, more importantly, more clearly advance the overriding goal of fairer trials.

Luke M. Milligan, Stacking in Criminal procedure Adjudication, 85 Chi.-Kent L. Rev. 331 (2010)

The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an “insulated base rule” in a way that disrupts the Justice’s larger policy agenda. An “insulated base rule” is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses. A Justice’s consideration of this third constraint (i.e., how a vote will affect a particular “insulated base rule”) is a process I call “stacking.” Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative “stacking” through close study of the Supreme Court’s recent opinions in Virginia v. Moore.

Rue Toland, Not Tax for “Phantom Income”: How Congress Failed to encourage Responsible Housing
Consumption with Its recent Tax Legislation, 85 Chi.-Kent L. Rev. 345 (2010)

In the midst of the recent housing crisis, Congress passed two key pieces of federal tax legislation in an attempt to stem the tide of foreclosures and prevent further economic collapse. These two bills, the Mortgage Forgiveness Debt Relief Act in 2007 and the Housing and Economic Recovery Act in 2008, both sought competing goals: lessening the harm to existing homeowners, and encouraging purchases by new homebuyers. However, neither bill adequately addressed one of the root causes of the housing crisis, namely homeowners obtaining mortgages that, for whatever reason, they could not afford. Indeed, the tax incentives these bills created would likely perpetuate that problem. Instead of passing legislation that would provide tax incentives favoring responsible home purchasing, Congress enacted new laws that encouraged the very sort of risky behavior that led to the housing crisis in the first place. An analysis of the Congressional debates prior to the passages of the Mortgage Forgiveness Debt Relief Act and the Housing and Economic Recovery Act demonstrates that this failure stemmed in part from a misunderstanding by the legislators regarding how the new provisions of the Tax Code would work. This note explores the tension between the need for a short-term fix and the necessity of a responsible long-term economic behavior evident in the Mortgage Forgiveness Debt Relief Act and the Housing and Economic Recovery Act.

Irina Slavina, Don’t Bet on it: Casinos’ Contractual Duty to Stop Compulsive Gamblers from Gambling, 85 Chi.-Kent L. Rev. 369 (2010)

To address the problem of compulsive gambling, most states with commercial casinos have enacted statewide self-exclusion programs, a mechanism by which patrons petition to be physically removed from a casino if they are discovered on the premises. The casinos in the remaining states voluntarily instituted facility-based programs to assist problem gamblers in fighting their addiction. But besides having any intended effect, these programs provided gamblers with a new ground for lawsuits based on breach of contract. This note argues that neither states nor individual casinos should be liable to self-excluded patrons for breach of contract, even if they enter a casino and lose money while gambling. First, no contract exists between the states and self-excluding gamblers because in administering the self-exclusion programs the states simply fulfill their preexisting statutory duty and, in any event, the states are shielded from such lawsuits by sovereign immunity. Likewise, casino-administered programs do not create contractual relationship due to lack of consideration. Casinos are not bargaining for their patrons to refrain from gambling. Rather, casinos are simply providing their patrons with an accommodation or social service to promote responsible gaming. But even if the contract was established, every self-exclusion form contains an exculpatory clause that prevents any liability on the part of the states and casinos. These clauses should be enforceable as dictated by public policy. To hold otherwise would shift the main responsibility for compliance from the patron to the casino which would be counter-productive to the program’s goals.

Paul Forster, Separating Church and State: Transfers of Government Land as Cures in Establishment Clause Violations, 85 Chi.-Kent L. Rev. 401 (2010)

The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave dessert . The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court’s Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the type of remedial transfer at issue in Buono, and it suggests how judges can police such sales in order to ensure that they pass constitutional muster.

Gregory W. Jones, Free Speech & Tainted Justice: Restoring the Public’s Confidence in the Judiciary in the Wake of Republican Party of Minnesota v. White, 85 Chi.-Kent L. Rev. 441 (2010)

The United States Supreme Court’s 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to preserve judicial impartiality in an era of modern campaigning. Preserving the remaining canons of judicial conduct is vital to avoid transforming judicial elections into the highly politicized contests typical of the executive and legislative branches of government. Moreover, modifications to current judicial disqualification and recusal standards are needed to place the appropriate emphasis on the importance of maintaining judicial impartiality. Finally, significant changes must be made to the way the courts handle recusal motions to ensure that a judge is never allowed to unilaterally evaluate his own impartiality. As judicial campaign spending continues is meteoric rise, the need to preserve the public’s confidence in the judiciary has never been greater.

Below is a tentative table of contents for Volume 84, Number 2 of the Chicago-Kent Law Review. Eventually, we will be placing the final table of contents, along with copies of each paper, in the archives.

Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law: An Introduction to a Festerschrift in Honor of Jefferey Sherman, 84 Chi.-Kent L. Rev. 345 (2009).

Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 Chi.-Kent L. Rev. 379 (2009).

The high profile contemporary controversy about whether to allow same-sex couples to marry has obscured an earlier debate about same-sex marriage. This previous debate took place inside the LGBT movement, where equality advocates faced off about whether marriage equality ought, as a normative matter, to be pursued. With few exceptions, this internal critique of LGBT marriage has receded. In this article, Professor Schacter revisits the earlier debate, considers why pro-equality marriage skepticism faded, reflects on how the public debate about same-sex marriage today might have unfolded differently had the marriage skeptics within the LGBT community held more sway, and suggests ways in which the largely-forgotten internal debate has relevance in the contemporary context.

Edward Stein, The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships, 84 Chi.-Kent L. Rev. 403 (2009).

For many years, a common argument made by opponents of same-sex marriage was that marriage crucially involves procreation and, because couples consisting of two people of the same sex simply cannot procreate, therefore, same-sex couples should not be able to marry. While this argument is now widely seen as weak, in its place, a new argument that also involves procreation has emerged that focuses on the claim that different-sex—but not same-sex—couples, can accidentally procreate. Because of this risk of accidental procreation and the associated risk of harm to children who result from accidental procreation, proponents of this argument conclude that it is permissible for the state to provide different-sex couples with the opportunity to marry without providing the same opportunity to same-sex couples. Several courts have embraced this argument against same-sex marriage. This paper shows that the accidental procreation argument against same-sex marriage has the same infirmities as prior arguments against same-sex marriage that concern procreation. Both arguments have problems with under- and over-inclusiveness and both embrace an overly narrow account of the role of marriage. The accidental procreation argument should, like previous arguments from procreation, eventually wither under both empirical and logical analysis, and subsequently, be rejected by states as plausible justifications for prohibiting same-sex marriages and rejected by courts as not satisfying rational review.

John G. Culhane, Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights, 84 Chi.-Kent L. Rev. 437 (2009).

This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970′s through late 2008. Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970′s, the socially enforced invisibility of gay lives and relationships translated into an inability to regard “gay marriage” as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view. Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts were been able to focus on economic understandings and the law of contract.

Patricia A. Cain, DOMA and the Internal Revenue Code, 84 Chi.-Kent L. Rev. 481 (2009).

The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. The article then considers other justifications for applying DOMA to federal tax law and concludes that none of them meet minimal levels of rationality to support retaining the DOMA ban in the year 2009. Because the justifications fail, DOMA, as applied to federal tax law, is unconstitutional.

Arthur S. Leonard, Exorcizing the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009).

After the Supreme Court rejected a constitutional challenge to criminal sodomy laws in Bowers v. Hardwick (1986), lower federal courts almost invariably took the position that gay litigants could not prevail in challenging governmental discrimination on the basis of sexual orientation, reasoning that if conduct that “defined the class” was not constitutionally protected, government discrimination against the class should not be considered presumptively unconstitutional. Such logic should have been discarded after the Supreme Court’s decision in Romer v. Evans (1996), and certainly after Lawrence v. Texas (2003), in which the Court expressly overruled Bowers v. Hardwick. But lower federal courts have persisted in rejecting gay equal protection claims, frequently relying on pre-Romer circuit court of appeals decisions that cited Bowers as controlling precedent. These discredited but still influential precedents are the “ghosts” of Bowers v. Hardwick. Now that Bowers has been overruled, it is past time for the lower federal courts “exorcize” these ghosts by thinking anew the doctrinal issues raised by gay equal protection claims, which should lead to heightened scrutiny of policies and practices that discriminate against gay people.

M.V. Lee Badgett, Brad Sears, Holning Lau, and Deborah Ho, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 Chi.-Kent L. Rev. 559 (2009).

This article summarizes social science data published during the past decade documenting discrimination against lesbian, gay, bisexual, and transgender (LGBT) people in employment. Over the last ten years, many researchers have conducted studies to find out whether LGBT people face sexual orientation discrimination in the workplace. These studies include surveys of LGBT individuals’ workplace experiences, wage comparisons between lesbian, gay, and bisexual (LGB) and heterosexual persons, analyses of discrimination complaints filed with administrative agencies, and testing studies and controlled experiments.

Andrew Koppelman, Madisonian Pornography or, The Importance of Jefferey Sherman, 84 Chi.-Kent L. Rev. 597 (2009).

James Madison’s classic attack on the Sedition Act shows how free speech protection is vital to the functioning of democracy. His argument reaches toward, but does not fully defend, a right to pornography. Jeffrey Sherman’s work, which shows that gay pornography played a significant role in the genesis of the gay rights movement, completes the Madisonian argument. The more general lesson is that speech consisting of claims about what goods are worth pursuing—such as pornography, which implicitly contains claims about what sexual goods are worth pursuing—should always be understood to be part of protected public discourses.

Cynthia Estlund, Corporate Self-Regulation and the Future of Workplace Governance, 84 Chi.-Kent L. Rev. 617 (2009).

American labor law has largely failed to deliver a viable mechanism for employee representation in workplace governance, while the ever-expanding body of employment law does not even attempt to do so. The resulting “democratic deficit” in the workplace is a problem in part because, without employee representation, the rights and labor standards mandated by employment law are widely under-enforced. But that very problem could point toward a solution. For while employment law does not aim to give employees a role in workplace governance, it has in fact fostered the growth of new governance mechanisms within firms in the form of internal compliance programs that capitalize on and develop firms’ own regulatory capabilities. The law has encouraged this development in part by conferring regulatory advantages on firms that maintain “effective” self-regulatory structures. Missing, however, is the recognition that, for self-regulation to be effective in the realm of employment law, it must include an organized institutional voice for employees. In other words, there should be no self-regulation, and no self-regulatory privileges, without employee representation. These same mechanisms of “regulated self-regulation” and employee representation, coupled with an appropriately broad definition of employer liability, could also help to address the problem of widespread noncompliance with labor standards among the small contractors that supply labor to more visible and capable organizations. In short, existing developments within and among firms could and should be steered toward creating new mechanisms for collective employee participation in workplace governance.

Robert J. Grindle, Frenzy-Free Funerals: The Least America Owes Its Fallen heroes, 84 Chi.-Kent L. Rev. 637 (2009).

Frenzy-Free Funerals: The Least America Owes its Fallen Heroes analyzes the constitutionality of the Respect for America’s Fallen Heroes Act (RAFHA). After detailing relevant First Amendment cases, the note examines court treatment of funerals and death-related issues. The history and purpose of funerals is examined from a psychological and sociological perspective, including a funeral’s significance to individuals and society at-large. Finally, the note concludes that the RAFHA is constitutional under the First Amendment, given the relevant test, court cases, and societal norms.

Adam P. Joffe, The Medical Monitoring Remedy: Ongoing Controversy and a Proposed Solution, 84 Chi.-Kent L. Rev. 663 (2009).

Prior to the mid-1980s, tort law adhered to the traditional notion that the threat of future harm was not an adequate ground to pursue a claim in tort. However, in Friends for All Children v. Lockheed Aircraft Corp., the United States Court of Appeals for the District of Columbia awarded a group of plaintiffs the cost of future medical examinations aimed at detecting whether the plaintiffs suffered from a particular neurological impairment. This new remedy became known as “medical monitoring.” Since Friends for All Children v. Lockheed Aircraft Corp., the medical monitoring remedy has attracted controversy and has resulted in widely diverging views among various jurisdictions. This note will discuss the history of the medical monitoring remedy, including common criticisms of the remedy. The note will propose a strict standard that must be met before medical monitoring is awarded in the future and will propose a method for disbursing medical monitoring awards when they are deemed appropriate.

Jeremy D. Kerman, Righting the Notice Pleading Ship: How Erickson v. Pardus Solidifies the Modern Supreme Court Trend of Notice-Giving in Light of Bell Atlantic Corporation v. Twombly, 84 Chi.-Kent L. Rev. 691 (2009).

This Note traces the history of pleading in the United States from the adoption of the Federal Rules in 1938 through the Twombly and Erickson decisions in the summer of 2007. Specifically, this Note examines the Twombly decision and its effects on the trend the Supreme Court has established over the last half-century concerning the notice pleading standard of Rule 8(a)(2). This Note also suggests that the Twombly Court effectively created a heightened pleading standard for antitrust cases, even though it specifically denied doing so. I then analyze the Erickson decision and how the timing and direct nature of Erickson suggests that the Court’s decision in Twombly does not extend beyond Twombly itself. Ultimately this Note argues that while Twombly departed from the modern trend of simple notice pleading in response to concerns with the ever-increasing costs of discovery in federal litigation, Erickson demonstrates the Court’s desire to isolate Twombly as an outlier and reinforce the modern trend in which Rule 8(a)(2) does not require a heightened pleading standard.

Happy new year and welcome back to the Chicago-Kent Law Review.

We’ll start 2010 with an overview of how our publications are coming along.

Volume 84, Number 1 is printed and has been delivered to our office (right now it is sitting in boxes on the floor but we’ll remedy that soon). For Volume 84, Number 2, we’ve received the first set of proofs from the publishers and are busily working on the latter stages of revisions. The proofs for Volume 85, Number 1 are also here, though we have not yet started revisions.

Our goal is to publish all of Volumes 84 and 85 by the end of Spring semester. Wish us luck (better yet, buy us a drink when you can).

Below is a tentative table of contents for volume 84, number 1 of the Chicago-Kent Law Review. Before long, we will be placing the final table of contents, along with copies of each paper, in the archives.

Video from the Philanthropy Symposium we hosted last month is now available on line. See the Symposium page for links and instructions on how to view it.

Papers based on these presentations will be published in an upcoming issue of the Chicago-Kent Law Review.