Volume 2015
An Introduction to the Symposium on Foreign Life Valuation
Arden Rowell & Lesley Wexler | 2015 U. Ill. L. Rev.
Slip Opinions 1
The symposium developed out of the article Valuing Foreign Lives, which identified
some policy puzzles posed by foreign life valuation. The article initiated its inquiry
by outlining a working definition of what constitutes a “foreign life,” namely:
the lives of persons outside the borders of a nation state. It then identified reasons
that might lead policymakers to distinguish between foreign and domestic lives,
and surveyed how the U.S. government actually does value foreign life in varied
contexts, including within armed conflict and for purposes of domestic regulation.
Moral Duties: A Response to Valuing Foreign Lives
Colleen Murphy | 2015 U. Ill. L. Rev. Slip Opinions
5
Should democratic governments place a value on life? If so, should the valuation
of foreign lives be the same as the valuation of domestic lives? This Article examines
the profound moral issues present when assigning quantitative value to human life
in response to Rowell and Wexler. Starting with the assumption that all lives, domestic
or foreign, have equal, intrinsic moral value, this Article argues that a justification
for disparate life valuations between foreign and domestic lives are a result of
the long-recognized difference between act and omission, between imposing a harm
on another and failing to render aid. Using the current philosophical debate surrounding
the scope of global distributive justice principles as a backdrop, this Article
highlights the morally salient distinctions among the various duties we have towards
individuals.
Normative Complexities of Valuing Foreign Lives
Jonathan S. Masur | 2015 U. Ill. L. Rev. Slip Opinions
12
How should the United States weigh the impact that its policies have on foreign
lives? In this Symposium, Rowell and Wexler have focused a much needed lens on the
problem, arguing that the U.S. government should implement a consistent system of
valuation. Yet this task will likely be far more complex than it might seem at first
blush, as this Article endeavors to demonstrate. Regulation that affects foreign
citizens, and military action that threatens foreign civilians, each raise highly
contextualized issues that cannot easily be resolved on a systematic basis. Government
actors may have no choice but to consider them in ad hoc case-by-case fashion. This
is an unavoidable consequence of dealing with a foreign sovereign. Nevertheless,
the United States could certainly improve the manner in which it has dealt—or not
dealt—with the issue. Rowell and Wexler have provided a valuable roadmap to doing
so.
In Valuing Foreign Lives, Arden Rowell and Lesley Wexler bring theoretical rigor
to bear on a vitally important yet atheorized area of legal policy: the valuation
of foreign lives in U.S. policymaking. At the heart of the article is a call for
transparency, aiming to enable greater understanding of the foreign impacts of American
policies. This is a radical move that holds the potential to transform the process
of making policy in the United States and to alter negotiations and relations with
other nations. The article offers substantial food for thought as well as a robust
research agenda going forward. In furtherance of that agenda, this brief comment
focuses on U.S. immigration law and policy, highlighting the challenging questions
that this highly politicized field presents for their theory. In particular, the
deep political controversies that surround immigration foreground the difficulty
of focusing on process rather than prescribing a normative solution.
Speaks Louder Than Words: Confronting the Collapse of Humanitarian Values in Foreign
Policy Decisions
Paul Slovic | 2015 U. Ill. L. Rev. Slip Opinions
24
“Why do good people and their governments repeatedly turn away from intervention
that could halt genocides and other mass abuses of human beings?” “What devaluation
of human lives could possibly allow this?” I began to examine such questions when
I became aware of the indifference toward the vast scale of atrocities being perpetrated
in Darfur, Sudan. I saw a connection between earlier research I had published with
David Fetherstonhaugh and colleagues in 1997 and subsequent research with Deborah
Small and George Loewenstein. Specifically, this work documented the insensitivity
to large numbers of lives at risk that we labeled psychophysical numbing, consistent
with the general nonlinear model of valuation proposed by Daniel Kahneman and Amos
Tversky (1979) in their landmark paper on prospect theory. Subsequent studies uncovered
additional evidence of insensitivity described as compassion fade and, in some cases,
compassion collapse, where valuation actually decreases and may even collapse to
zero as the number of lives at stake increases. All of this helps explain why many
who care greatly about individual lives lose their enthusiasm and compassion when
the numbers get large. Slovic, Zionts, Woods, Goodman, and Jinks proposed some procedures
that might infuse the dry statistics of atrocities with enough emotion to motivate
people to care enough to act.
Foreign Lives in Genocides & Mass Atrocities: Law, Humanitarian Intervention,
and the Prominence Effect
Lesley Wexler | 2015 U. Ill. L. Rev. Slip Opinions
32
Genocides and mass atrocities present a stark example of foreign life devaluation.
Those engaged in the killings do not just undervalue but actually negatively value
the lives lost and at risk. Although the U.S. public and decision makers might highly
value such foreign lives in the abstract, the rarity of humanitarian interventions
leads Slovic to conclude that government action fails to track abstract valuations.
If, as Slovic hypothesizes, the prominence of national security concerns drives
down humanitarian interventions below actually held foreign life valuation, how
does law reinforce or counteract this effect on policymakers? Relatedly, how could
policymakers reconfigure the law and legal institutions to overcome the prominence
effect and allow a fuller cost benefit balancing of actions to prevent genocides
and mass atrocities?
to Pay” and the Preservation of Coastal and Low-Lying Communities and Cultures in
an Era of Climate Change
David Dana | 2015 U. Ill. L. Rev. Slip Opinions
42
The Inuit Village of Kivalina in Alaska is sinking into the ocean. Unless a tremendous
amount of resources are invested in keeping the ocean at bay, assuming that were
even technically feasible, the village will disappear from its current location.
And if the bonds, the community, the culture of Kivalina are to be preserved, a
great deal of resources will be required to relocate the village—its buildings,
its residents—inland in a new, but in a way similar, Kivalina. Should resources
be spent to fight off the effects of extreme weather and sea level rise that could
subsume Kivalina or, alternatively, to reconstruct a new Kivalina in a safer, more
inland site? The people of Kivalina certainly cannot do much of anything but plea
for help, something they have done in part through litigation. Thus, the question
really is, should the state and federal government—and really, the latter, as in
the United States efforts of these sorts are almost always going to be federally
funded or not funded at all—pay to preserve Kivalina or at least recreate Kivalina
in a new location?
Conclusions on the Symposium on Foreign Life Valuation
Arden Rowell | 2015 U. Ill. L. Rev. Slip Opinions
47
What obligations do states owe to foreign persons as compared to domestic ones?
How should government policy account for psychological biases that lead people to
value the deaths of many less than the death of one, or for the social factors that
lead people to treat out-groups differently than in-groups? If preferences matter
to policy, should the political geography of the person with the preference determine
whether that preference is counted? The answers to these questions are difficult,
and may even vary across context based upon political, social, or practical factors.
Yet, up to now, there has been a marked lack of conversation across academic disciplines
on how to integrate these concerns into a general theory of foreign life valuation,
and even less on how to tailor a specific foreign valuation practice to specific
policy contexts.
Response to the ABI Symposium on Chapter 11 Reform
Secured
Credit in Religious Institutions’ Reorginizations
Pamela Foohey | 2015 U. Ill. L. Rev. Slip Opinions
51
The high-profile Chapter 11 cases of American Airlines, General Motors, and Lehman
Brothers have underscored the increasing influence of secured creditors in the reorganizations
of large corporations. Drawing from the outcomes of these and other prominent cases,
scholars and practitioners increasingly assume that most businesses enter Chapter
11 with a high percentage of secured debt, which leads to a high percentage of cases
ending in the sale of the debtor’s assets under § 363 of the Bankruptcy Code (“363
sales”) rather than with confirmation of reorganization plans through the more traditional
use of the Chapter 11 process. This perception of the evolving landscape of Chapter
11 raises questions about the extent to which blanket liens and rapid 363 sales
permit secured creditors to capture going-concern value. Indeed, partially in response
to claims about “the end of bankruptcy,” the American Bankruptcy Institute (“ABI”)
formed a commission to study current uses of Chapter 11 and to offer recommendations
for the reform of business reorganization.
Introducing Text-Bound Originalism
Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage)
Suja A. Thomas*
| 2015 U. Ill. L. Rev. Slip Opinions 61
Originalism has played a part in many court decisions, including on the issue of
whether states can ban same sex marriage. For the most part, the argument goes that
the modern constitutional meaning trumpeted by supporters is not the original public
meaning of the constitutional provision. Regarding same sex marriage, for example,
originalists argue that the original public meaning of the Fourteenth Amendment’s
equal protection clause was the protection of African-Americans from discrimination
by states, not the protection of gays and lesbians from discrimination by states.
So, the equal protection clause did not and cannot protect gays and lesbians from
such discrimination. These arguments assume that originalism should play a significant
role in the interpretation of all provisions in the Constitution. This brief essay
introduces the idea that this assumption is misplaced.
Volume 2014
Medicaid Expansion as Completion of the Great Society
Nicole Huberfeld & Jessica L. Roberts | 2014 U. Ill. L.
Rev. Slip Opinions 1
On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the
ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon
signing Medicare and Medicaid into law in 1965. Although the spotlight shone on
Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest
in its safety net—but only some of them. Medicaid’s exclusion of childless adults
and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing
to its stigma and seeming political fragility. Now, Medicaid touches every American
life. One in five Americans benefits from Medicaid’s healthcare coverage, and that
number soon will increase to one in four due to the Patient Protection and Affordable
Care Act.Medicaid’s universalization reveals that the program can now be best understood
as a vehicle for civil rights.
Paying the Price for Environmental Disaster: An Interim Report on Criminal and Civil
Liability for the BP Oil Spill
Daniel A. Farber | 2014 U. Ill. L. Rev. Slip Opinions
9
It took twenty years to wind up the litigation arising from the Exxon Valdez oil
spill. But less than five years after the BP Deepwater Horizon oil spill, BP has
already paid out over $25 billion in clean-up, damages, and penalties. It has also
agreed to a massive class action settlement, and faces potential civil penalties
in the billions. This Article provides a roadmap to the litigation and explains
how the legal system has been able to produce such rapid and generous results.
Mother Survivors of Domestic Abuse: A Plea for Legal Clarity
Sara R. Benson | 2014 U. Ill. L. Rev. Slip Opinions 18
Intimate partner violence in Lesbian relationships is not rare, but studies regarding
the relationship between such violence in the context of lesbian families are sparse.
While same sex marriage lawsuits are pending in every state, it is important to
remember that domestic abuse happens in gay and lesbian marriages, too. Without
marital rights, the rights of same sex parents are less clear. In this realm of
family, without clear, legal defined rights, lies a method for torture no mother
should have to endure: the threat that one’s legal rights will be terminated.
Overlapping Trademark and Copyright Protection: A Call for Concern and Action
Irene Calboli | 2014 U. Ill. L. Rev. Slip Opinions 25
Currently, many forms of intellectual property can qualify for protection both under
trademark and copyright law. Granting trademark protection for these works has the
potential to negatively impact the social bargain upon which copyright protection
is built and justified. Over the past few decades several judicial decisions have
recognized this overlapping protection; generally, however, the majority of courts
have proved reluctant to comprehensively address the issue, and have consistently
accepted that trademark protection can apply to creative works when they are used
to identify products offered for sale in the market. This perceived judicial support
has contributed to further overlapping protection and, in turn, an increase in trademark
claims.
Corporate Finance
Sung Eun (Summer) Kim & Aaron Birk | 2014 U. Ill. L. Rev. Slip
Opinions 35
With projections that the demand for legal services will remain relatively flat
in the post crisis period, legal service providers are placing greater emphasis
on business and client development, and increasingly expect such efforts from their
newest associates. As language and culture can be the bridge or barrier to communication,
lawyers who can speak the language and understand the business of clients will be
in the best position to meet such expectations.