Volume 1995

Number 4


The Impact of the Garcia Decision on the Market-Participant Exception to the Dormant Commerce Clause

Dan T. Coenen | 1995 U. Ill. L. Rev. 99991

In National League of Cities v. Usery, the Court recognized a strong state-sovereignty-based limit on Congress’s exercise of its commerce power. In Garcia v. San Antonio Metropolitan Transit Authority, however, the Supreme Court overruled National League of Cities, relying in part on past difficulties in trying to distinguish between protected state “governmental” activities and unprotected state “proprietary” activities. In the wake of Garcia, commentators have urged that its reasoning undermines the Court’s longstanding exemption of state proprietary activities from dormant Commerce Clause challenge under the so-called “market-participant” doctrine.

In this article, Professor Dan Coenen refutes this argument, by showing that the rule forged in Garcia with respect to the range of congressional power should not affect the scope of state power to pass laws consistent with the principle of free interstate trade. Indeed, according to Coenen, the concerns that gave rise to Garcia support, rather than undermine, the market-participant exception. This is so, Coenen argues, whether one views Garcia as resting mainly on concerns about the enhancement of doctrinal workability, the facilitation of state innovation, or the forging of rules responsive to structural protections of state interests built into the national political process. For these reasons–as well as others–Coenen contends that the decision in Garcia should not affect the continuing vitality of the market-participant exception to the dormant Commerce Clause.

* Associate Professor, University of Georgia School of Law. B.S. 1974, University of Wisconsin; J.D. 1978, Cornell Law School.

Protecting Parents’ Freedom to Have Children with Genetic Differences

Lois Shepherd | 1995 U. Ill. L. Rev. 99992

With the ever increasing advancements in prenatal medical research and technology, carrier screening, and in utero fetal therapy, prospective parents now more than ever can better assess the likelihood that their children will be born with genetic disorders. Should parents have an obligation to conceive and bear only genetically healthy children? In this article, Professor Lois L. Shepherd analyzes the recent developments regarding parents’ decision to conceive and bear children with genetic anomalies. She challenges the emerging “right to a sound mind and body”–which may include the right to be born free of genetic disabilities–and argues that the right imposes unduly burdensome legal and ethical mandates on prospective parents. Professor Shepherd considers the right to bodily integrity as a means of attacking sound mind and body rights, but questions the adequacy of a bodily rights analysis as a suitable solution. To solve the problem, and to resolve the conflict between sound mind and body rights and bodily integrity rights, Professor Shepherd proposes a right to familial attachment, a right grounded in the nonadversarial parental-fetal relationship, that would allow individuals to conceive, carry, and deliver a child with genetic differences without state intervention.

* Assistant Professor of Law, Florida State University. B.A. 1984, University of North Carolina; J.D. 1987, Yale Law School. Research for this article was supported by a grant from Florida State University. The author thanks Anne Dellinger, Frank Garcia, Ann McGinley, Tim Schandl, Paul Shepherd, and Nat Stern for their helpful comments on earlier drafts, and thanks to Christy Donovan, Harry Graham, and Tim Schandl for their research assistance. Special thanks are given to Paul Shepherd for his helpful discussions of the subject and constant encouragement.

Parents, Partners, and Personal Jurisdiction

Rhonda Wasserman | 1995 U. Ill. L. Rev. 99993

Generally speaking, a state court can compel a person to appear and defend a civil suit only if the defendant has minimum contacts with the state such that the assertion of jurisdiction over her would be fair and reasonable. In divorce and child custody actions, however, state courts often assert jurisdiction over defending spouses or parents who lack such contacts. Courts justify such assertions of jurisdiction by arguing that a state must have power to determine the civil status of its citizens (regardless of whether others who may have an interest in that status are within the court’s jurisdiction). In her article, Professor Wasserman challenges the appropriateness of this status exception in both the divorce and child custody contexts. The article carefully explores the rationales that have been offered, historically and presently, to justify the status exception. The article then critiques each rationale in turn, demonstrating that in the vast majority of divorce and child custody cases, due process requires that the defending party have some connection to the forum state.

* Professor of Law, University of Pittsburgh School of Law. A.B. 1980, Cornell University; J.D. 1983, Yale Law School.

David C. Baum Memorial Lecture: Who’s afraid of Critical Race Theory?

Derrick A. Bell | 1995 U. Ill. L. Rev. 99994

In this essay, originally delivered as a David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor Bell begins by discussing the recent debate surrounding The Bell Curve, and utilizing the tools of critical race theory, he offers an alternative explanation as to why the book’s authors decided to publish rejected theories of black inferiority. Professor Bell then discusses the origins of critical race theory, what the theory is, what the theory ought to be, and the critics’ attack of the theory. He concludes with stories about black struggle in America, stories which Professor Bell believes accurately depict the ongoing racist efforts to prevent black success.

* Visiting Professor of Law, New York University. A.B. 1952, Duquesne; L.L.B. 1957, University of Pittsburgh. Erin Edmonds, J.D. 1991, Harvard, provided the research for this essay.

This essay was originally presented on February 23, 1995, as the second lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.


Conflict of Laws Rules and the Interstate Recognition of Same-Sex Marriages

Anthony Dominic D’Amato | 1995 U. Ill. L. Rev. 99995

To date, no state has recognized the validity of same-sex marriages. However, the Hawaii courts currently are confronted with this very issue in Baehr v. Lewin. If the plaintiffs in Baehr prevail, other states will be faced with the issue of whether they must recognize validly contracted Hawaiin same-sex marriages. In this note, the author reviews the Baehr case and sets forth the relevant conflict of laws rules. In addition, this note analyzes the arguments on both sides of this delicate issue. Finally, the note concludes that, under certain circumstances, states should recognize validly contracted, out-of-state, same-sex marriages.

Capital Asset Pricing Theory and the Risk of Government Regulation: Who Needs the Takings Clause Anyway?

Christopher B. Horn | 1995 U. Ill. L. Rev. 99996

The Fifth Amendment’s Takings Clause of the U.S. Constitution requires the government to pay just compensation whenever it “takes” private property. For most of this century, the Supreme Court has struggled to define precisely what government actions constitute a “taking” for Fifth Amendment purposes. Instead of producing a precise definition, this struggle has led to a “crazy-quilt pattern of Supreme Court doctrine.”

Rather than attempting to develop a comprehensive takings theory, this note focuses on situations in which the Takings Clause should not apply at all. The author argues that property owners with well-diversified portfolios of capital assets do not need the Takings Clause to protect them from the risk of government regulation. The author utilizes this principle to attack the Supreme Court’s takings jurisprudence and to establish a sound foundation for future takings doctrines.

Native American Mascots, Schools, and the Title VI Hostile Environment Analysis

Daniel J. Trainor | 1995 U. Ill. L. Rev. 99997

The use of Native American athletic mascots on school campuses has been the focus of increasing controversy and protest. In response, the U.S. Department of Education has begun investigating whether schools\’ use of Native American mascots violates the civil rights of Native American students by creating a hostile environment. This note examines whether the Department of Education can correctly apply the hostile environment analysis to complaints over the use of Native American mascots arising within the educational setting. The note concludes that while the analysis is applicable in the primary school setting, it is inapplicable in the college and university setting.