Sixty-six years ago in Powell v. Alabama, the Supreme Court declared that the pretrial stage from arraignment until trial was “the most critical period” for investigating criminal charges, preparing a defense, and consulting with an attorney. Yet, throughout the country, a majority of states and localities do not provide counsel for indigent defendants when they first appear for a judicial bail determination and for a lengthy period thereafter during the crucial pretrial stage. In this article, Professor Colbert argues that the constitutional right to counsel should apply to bail proceedings to protect an individual’s liberty and right to defend against a criminal accusation.

Professor Colbert begins by describing the results of a national survey he conducted, which indicates that, in most jurisdictions, an accused should not expect legal representation when first brought to court before a judicial officer, who decides whether to order pretrial release or bail. He goes on to explain the crucial importance of representation by counsel at the bail determination and provides a Sixth and Fourteenth Amendment analysis for guaranteeing the right to counsel. Moreover, Professor Colbert discusses why jurisdictions are mistakenly applying the constitutional doctrine and denying counsel to indigents at the bail stage, and for many days, weeks, or months thereafter. The author then offers an economic justification for providing counsel by describing the substantial cost savings that would result from representation for bail purposes. Professor Colbert contends that lawyers’ early intervention would significantly reduce court congestion and overcrowded jails, thus lowering the public expense for maintaining an unnecessarily large pretrial jail population. He concludes by asserting that the professional responsibilities of lawyers, judges, and the legal profession as a whole require that they advocate for representation by counsel at this initial stage of a criminal proceeding.

* Professor of Law, Maryland School of Law. A.B. 1968, State University of New York at Buffalo; J.D. 1972, Rutgers (Newark) Law School.

After many years of analyzing trademark law, Professor Davis turns his attention to examining the contours of “trade dress” protection for product configurations. In particular, Professor Davis notes that the scope of trade dress protection generally has been expanding in recent years, culminating in the Supreme Court’s decisions in Two Pesos, Inc. v. Taco Cabana, Inc., and Qualitex Co. v. Jacobson Products Co.

Trade dress protection for product designs is all the more interesting because it is a relatively recent development. Historically, competitors freely copied unpatented product configurations with no threat of reprisal. This freedom was reinforced by the Patent and Trademark Office, which refused to register configurations as trademarks. Professor Davis traces the development of trade dress law in this area and its distinctions from similar, but inapplicable, patent and copyright remedies. Trade dress protection can be differentiated from patent and copyright laws because it requires that the trade dress be used in commerce, distinctive, and nonfunctional.

Because both the Supreme Court’s jurisprudence and the federal Lanham Act have left holes in trade dress law and the courts of appeals have varied in their analyses, Professor Davis examines the different approaches taken in each circuit, and what standards and types of evidence are appropriate to qualify a product design for trade dress protection. Specifically, on the distinctiveness prong, claimants seeking trade dress protection may seek to show the inherent distinctiveness of their designs, or they may seek recognition that their product configurations have achieved a secondary meaning entitling them to protection. From the standpoint of functionality, courts may look at the utility and competitive necessity of the configuration, as well as the existence of utility or design patents covering the configuration.

Finally, Professor Davis considers the two standards for evaluating liability in product configuration trade dress cases: likelihood of confusion and dilution. Likelihood of confusion has been the traditional standard for evaluating unfair competition cases, but the relatively newer dilution theory, focusing on impermissible dilutions of the plaintiff’s product configuration, offers a different alternative for relief. But although dilution theory is promising, it is still in its infancy, and its scope in the product configuration context in particular has yet to be defined by the courts.

In sum, Professor Davis’s analysis of trade dress protection for product configurations offers a practical understanding of the limits and possibilities of current trade dress law.

* Adjunct Professor, Emory University School of Law; Kilpatrick Stockton LLP, Atlanta, Georgia; Member, Georgia and District of Columbia Bars.

In the United States, the traditional approach to environmental regulation has been for the Environmental Protection Agency to design pollution control standards for a category of industrial sources and then to mandate that all facilities within the category comply with the standard. Although this “command-and-control” system has been easy to administer, it may not be the most cost-effective way to regulate. Indeed, at a time when global competition requires American businesses to cut costs, the command-and-control approach may pose a major obstacle to continued environmental improvement.

To address this concern, the Clinton administration has developed a new program–Project XL–that allows industry leaders, the EPA, and the public to work together to come up with more cost-effective, and more protective, pollution control strategies for specific facilities. To date, over fifty-two companies have submitted proposals to participate in Project XL.

The main hurdle presently facing Project XL is a legal one. An essential component of the program is the EPA’s promise that, where participating companies have developed innovative control strategies that will protect the environment better than existing command-and-control requirements would, the Agency will substitute the new approach for the existing one. Serious questions have been raised about the EPA’s legal authority to lift valid and binding regulatory and statutory requirements in order to make way for Project XL. These legal questions about Project XL may jeopardize its future.

In this article, Professor Hirsch examines the legal foundations of Project XL. He first analyzes the four legal mechanisms that the EPA has stated it will use to grant regulatory flexibility to XL participants. After finding each of these four mechanisms to be flawed, Professor Hirsch argues that the Agency should consider using a fifth mechanism: implied waiver authority. This little-recognized power allows administrative agencies to grant exceptions from existing requirements where certain conditions are met. Professor Hirsch demonstrates that Project XL satisfies these criteria. He argues that the EPA could use its implied waiver authority to lift existing command-and-control requirements and to substitute in their place innovative strategies that protect the environment better and at less cost to society.

* Visiting Associate Professor, Notre Dame Law School. J.D. 1991, Yale Law School.

This essay served as the basis of Professor Michael W. McConnell’s David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois. In this essay, Professor McConnell explores the pre-Constitutional roots of the “traditionalist” approach to constitutional theory. He asserts that the rights and expectations found in our written constitution are rooted in common-law traditions and historical practices in Britain and in America.

* Presidential Professor, University of Utah College of Law.

The author is grateful for helpful comments by Akhil Amar, Philip Hamburger, Cass Sunstein, and participants in the Legal Theory Series at Yale Law School and the Work on Progress Series at the University of Chicago Law School.

Professor McConnell delivered the second of the 1996-97 David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law entitled “Deriving Modern Rights from the Ancient Constitution” on March 6, 1997. This essay is based on that lecture.

In 1974, Congress enacted the Employee Retirement Income Savings Act (ERISA) to protect workers receiving employer-provided benefits from administrative and funding abuses. With the advent of managed care, many workers’ health and well-being has become more a matter of business than of medicine. In an effort to contain costs, managed-care entities frequently limit patients’ options for treatment and care, which unfortunately, at times, results in tragedy. These tragedies usually result in state claims of medical malpractice to which managed-care entities raise an ERISA preemption defense. Moreover, managed-care entities argue that they merely make compensation decisions and do not direct physicians’ conduct, thereby precluding any liability.

The author argues that ERISA preemption should not abrogate state medical malpractice claims because such a broad use of ERISA preemption defeats Congress’s intent to protect workers. The author further argues that the distinction between making compensation decisions and directing physician conduct is false because of managed-care entities’ role. The author then discusses the role of the Supreme Court’s most recent decision on preemption which, perhaps, will limit the preemption defense and encourage state legislatures to pass new laws to help workers secure necessary medical services. Finally, the author urges Congress to unequivocally decide the viability of ERISA preemption in state medical malpractice cases by passing legislation consistent with ERISA’s goal of worker protection.

Scientific evidence, increasingly commonplace in today’s society, provides unique difficulties for the court, particularly with regard to admissibility. Because scientific evidence may make or break a case, the danger associated with introducing invalid evidence is great. In Daubert, the Supreme Court established a standard for the admissibility of scientific evidence based on reliability and relevance, rejecting the long-standing general acceptance test of Frye. However, the Daubert decision did not specifically state whether evidence regarding how a specific experiment or method was carried out in a particular case was relevant in determining the admissibility of the evidence or only the weight of the evidence. As a result, courts disagree as to the applicability of the Daubert standard regarding how a specific experiment or analysis was carried out. Should evidence of the use of a flawed procedure exclude the scientific testimony or merely discredit it? Courts which delegate the analysis of a particular application to the finder of fact, as a question of weight for the jury, cite expediency or alleviating the judge’s load, and confidence in the adversarial system. Courts which place the analysis in the hands of the judge as a gatekeeper cite the reliability of scientific evidence. This note proposes a compromise to the weight-of-the-evidence and admissibility approaches. The author suggests an affidavit provided by the expert which requires a showing of scientific integrity to assist the gatekeeper in the admissibility decision.

* B.S. Biochemistry, U.C. Los Angeles 1993; M.S. Chemistry, U.C. Berkeley 1995.

In 1997, this journal published an article by Professor Lynn D. Wardle of Brigham Young University where he argued that gay and lesbian parents who are in ongoing homosexual relationships may be harming their children and that, as a result, there should be a codified rebuttable presumption that parenting by homosexuals who are in relationships is not in the best interests of children. In this article, Professor Carlos A. Ball and Ms. Janice Pea argue that normative critiques of gay and lesbian families, such as Professor Wardle’s, are based on fundamental misconceptions of why thousands of gays and lesbians choose to have or adopt children. The authors explore the different reasons why heterosexual couples want children and conclude that the motivations of homosexual couples are not significantly different.

Professor Ball and Ms. Pea also conduct a point-by-point rebuttal of Professor Wardle’s assessment of the social science literature that has studied families headed by gays and lesbians. The authors contend that the research does not support Professor Wardle’s view that children raised by gays and lesbians are harmed by the sexual orientation of their parents. They also argue that there are practical, normative, and constitutional problems with Professor Wardle’s proposed rebuttable presumption. It is the position of this article that gay and lesbian parents should be evaluated individually on the basis of their ability to be good parents instead of being assessed on assumptions based on their sexual orientation.

* Assistant Professor of Law, University of Illinois College of Law. B.A. 1986, Tufts University; J.D. 1990, Columbia University School of Law; LL.M. 1995, Cambridge University.

** Law Clerk to Justice Rita B. Garman, Illinois Appellate Court, Fourth District. B.S. 1971, University of Illinois at Chicago; M.B.A. 1979, Case Western Reserve University; J.D. 1997, University of Illinois College of Law.

While most lawyers think of court-appointed experts as witnesses, judges increasingly appoint experts for managerial roles. For instance, court-appointed experts evaluate pretrial discovery; they play key roles in encouraging settlements and helping judges decide whether or not those settlements should be approved; they determine complex damages; they advise judges on remedial orders and monitor compliance and implementation. Professor Deason analyzes the proliferation of court-appointed experts for these indispensable functions in the absence of any explicit authority or procedures for their appointment. She argues that the current Federal Rules of Evidence and Federal Rules of Civil Procedure do not contemplate managerial functions for court-appointed expert witnesses or special masters and hence their limitations on appointments and their procedures are inadequate. Moreover, the other source of appointment authority, inherent judicial power, has ambiguous boundaries and offers courts little guidance.

Thus, Professor Deason suggests the development of new appointment authority tailored to the legitimate needs of the courts for managerial assistance, designed to encourage the maximum effectiveness in the use of experts, and constructed to prevent unnecessary interference with party autonomy.

* Associate Professor, University of Illinois College of Law. B.A., Carleton College; M.S., Oregon State University; J.D., University of Michigan Law School.

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, either fail to provide adequate guidance to parents or to sufficiently protect children from abuse.

Professor Johnson proposes a justification statute that would place parental conduct that results in physical injury to the child outside of the parental defense umbrella. The goal of the statute is to preserve the parental privilege to use disciplinary force while simultaneously providing a clear statement that the physical integrity of children is sacrosanct.

* Professor Johnson is the Director of Clinical Programs, Director of the Criminal Prosecution Clinic and Associate Clinical Professor of Law at the University of Missouri School of Law at Columbia, Missouri.

Roe v. Wade’s twenty-fifth anniversary is likely to herald widespread scholarly commentary on the decision’s continued vitality and the future of abortion in the United States. However, if such commentary focuses solely upon the constitutional dimensions and political aspects of a woman’s right to privacy, an important dimension of this right will be overlooked. Few commentators have considered the extent to which tort law safeguards a woman’s interest in reproductive autonomy. In this article, Professor Northern argues that the interest in reproductive autonomy has not yet received the full protection to which it is entitled and that tort law is poised to evolve distinct causes of action for the interference with procreative autonomy interests.

Professor Northern begins with an overview of the medical and psychological literature on abortion-related risks. She goes on to discuss current trends in abortion malpractice litigation. The author then reviews the three basic types of malpractice causes of action–battery, negligence, and lack of informed consent–and explores their application to abortion malpractice claims. The focus of the article then shifts to the development of specialized procreative torts, and Professor Northern contends that courts should go beyond previous decisions to redress any substantial interference with procreative autonomy. Finally, the author asserts that legislative alternatives to the common-law development of procreative torts, such as right-to-know statutes, are less protective of women’s interests. Professor Northern concludes that tort law could and should be used to more fully protect women’s interests in procreative autonomy.

* Associate Professor of Law, The Ohio State University College of Law. B.A. 1980, Williams College; J.D. 1983, Harvard University Law School.

This article uses the Civil Justice Reform Act of 1990 (CJRA) as the backdrop for addressing efforts to increase uniformity, simplicity, and transsubstantivity, and to decrease expense and delay in civil litigation. Professor Tobias discusses both the origin and the implementation of the CJRA. By requiring each federal district court to formulate a civil justice expense and delay reduction plan, the purpose of the CJRA is to decrease expense and delay in civil litigation. Professor Tobias argues that the CJRA has been successful because districts have applied techniques that have saved cost and time and have provided new data which may prove valuable upon evaluation; yet he argues that the CJRA does have shortfalls. A primary shortfall addressed in this article is that the CJRA effectively suspended the purpose of the Judicial Improvement Act of 1988 (JIA) to increase uniformity and simplicity in civil litigation. After a thorough evaluation of the effectuation of the CJRA, Professor Tobias ultimately suggests that policy makers should capitalize on the best aspects of the CJRA and the JIA, and he offers proposals for the future to increase uniformity, simplicity, and transsubstantivity, and decrease expense and delay in civil litigation.

* Professor of Law, University of Montana. I wish to thank Lauren Robel and Peggy Sanner for valuable suggestions, Cecelia Palmer and Charlotte Wilmerton for processing this piece, and the Harris Trust and Ann and Tom Boone for generous, continuing support. I am a member of the Civil Justice Reform Act Advisory Group for the U.S. District Court for the District of Montana; however, the views expressed here and the errors that remain are mine.

In this essay, Professor Lynn Wardle responds to Professor Carlos Ball’s and Ms. Janice Pea’s article, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parents, published in this issue of the University of Illinois Law Review. In their article, Professor Ball and Ms. Pea criticize Professor Wardle’s earlier work on the subject (also published in this journal), but Wardle argues that Ball and Pea have mischaracterized a number of his positions and focused their criticism not on Wardle’s actual claims and proposal, but on their preconceived notions of what the positions and proposal of a critic of homosexual parenting must be. While he claims that they have conceded many key points of his article, Wardle criticizes Ball and Pea for failing to address the core issues raised by his proposal.

Wardle explains that his original proposal was simply that courts should adopt a rebuttable presumption that ongoing homosexual relations by one claiming parental rights is not in the best interests of the child. Wardle argues that the law must make some presumption??one way or the other??concerning the potential harm to children when a parent engages in homosexual conduct. Given the need to make such a presumption, Wardle states that his proposal is quite moderate because it merely shifts the cost of overcoming the presumption onto the party that, by engaging in homosexual conduct, created the potential harm to the child. Finally, Professor Wardle agrees that it is important to consider the moral dimensions of homosexual parenting and argues that his proposed rebuttable presumption promotes the best interest of children.

* Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A. 1971, Brigham Young University; J.D. 1974, Duke University.

The attorney-client privilege is an important feature in litigation because it prevents courts from compelling an attorney or client to reveal confidential communications involving legal advice. However, the privilege is not absolute; it can be waived. Determining the scope of a waiver can be difficult given the courts’ varied interpretations of when there is a waiver. These inconsistencies, argues the author, serve as compelling justification for the Supreme Court to assure litigants predictability and consistency by adopting a uniform standard for determining the scope of the attorney-client privilege waiver. Specifically, the author proposes a three-part test to guide the Supreme Court. Adopting such a test, the author argues, would benefit the courts and litigants and improve the efficiency of the litigation process.

* Alumni Distinguished Professor, College of Law, and Professor, Institute of Government and Public Affairs, University of Illinois. B.A. 1968, Dartmouth College; B.A. 1972, St. Catherine’s College, University of Oxford; Ph.D. 1979, Stanford University.

In Mortal Peril, Professor Epstein is critical of the current, regulated system for organ donation and suggests that a market for organ tissue would better meet the needs of patients. In this response to Professor Epstein, Professor Laura Dooley and Dr. Robert Gaston pair their skills to attack Professor Epstein’s proposal. As they have done on several other occasions, Professors Dooley and Gaston argue that the kidney donation and transplantation arena is fraught with racial inequity, and that Professor Epstein’s proposal for a market in kidneys will exacerbate this inequity. The authors maintain that to prevent the poor from being excluded from transplants, the government plays a critical (if imperfect) role in the allocation of these scarce resources. Furthermore, government intervention is acceptable to correct past discrimination because there is scientific evidence that the disproportionate incidence of kidney failure in African Americans is related to the evolutionary pressures of slave trading and slavery. Professors Dooley and Gaston also defend their previous efforts to change the government system of allocation and characterize the government’s willingness to adopt their recommendations as an appropriate response to scientific research rather than a governmental susceptibility to lobbying from special interest groups. Finally, the authors criticize Professor Epstein’s argument that dialysis is a viable alternative to transplantation because there are significant differences in “quality of life, morbidity and survival.” Professors Dooley and Gaston conclude that government intervention is necessary for maintaining the equity in kidney transplantation that a market system would not.

* Professor of Law, Valparaiso University School of Law. B.A. 1982, University of Arkansas; J.D. 1986, Washington University School of Law.

** Associate Professor of Medicine, University of Alabama at Birmingham. B.A. 1975, University of Arkansas; M.D. 1979, St. Louis University.

Professor Henry Greely views Richard Epstein’s Mortal Peril as a provocative, but ultimately failed work. It provokes with both its sharp analysis and its pointed language. Yet it fails in its goal of demonstrating the useful application of Epstein’s first principles to the problems of access to health care.

Greely first argues that several of Epstein’s chapters focus on the need to change the health care system to let people who cannot afford care die, without providing empirical support for his claims about the costs of the current system. He asserts that Epstein never assesses the possible benefits to the programs he attacks, including the value in their correspondence to the popular unwillingness to let people die for lack of money. He contends that Epstein’s rhetoric about these deaths is harsh and likely counterproductive.

Greely then contends that Epstein’s examination of access to health care delivers far less than the sweeping assessment the book promises. Mortal Peril fails to recommend specific reforms or describe, even in general terms, how the health care system would operate if its principles were adopted. Greely then constructs a health care system that he argues would meet Epstein’s principles. He claims that it would provide more health coverage for those who need it least, and less health coverage for those who need it most–a result both substantively and politically unacceptable. Epstein’s first principles, Greely urges, do not provide solutions to the problems of access to health care and are, at best, irrelevant to them.

Finally, Greely argues that the book’s provocative premise, combined with its flaws, creates the danger that many will disregard future attempts to bring the tools of economic analysis to bear on health care reform. To Greely, this danger is more real than the danger that Epstein’s proposals will be followed by health care policy makers.

* Professor of Law, Stanford University; Professor, by Courtesy, of Genetics. A.B. 1974, Stanford; J.D. 1977, Yale.

In this response to Professor Richard Epstein’s book Mortal Peril, Professor Hall argues that health care is a partial public good which invites limited governmental intervention and some elements of social insurance. He therefore takes issue with Professor Epstein’s opposition to small group market reforms. Such reforms include guaranteed issue, limits on preexisting condition exclusions, and affordability provisions. Professor Hall argues that small group market reforms help to preserve a private insurance market as well as a voluntary insurance purchase system. He agrees with Professor Epstein that such reforms create cross-subsidies and alter how insurers compete, but Professor Hall argues that these effects have market advantages. Although Professor Hall further agrees with Professor Epstein that some reforms create market distortions, Professor Hall has found from his empirical studies that small market reforms work reasonably well.

* Professor of Law and Public Health, Wake Forest University; Visiting Professor, University of Pennsylvania Law School. B.A. 1977, Middle Tennessee State University; J.D. 1981, University of Chicago.

In this article, Professor Kaplan questions the validity of Professor’s Epstein’s attack on the Medicare system. Professor Kaplan agrees with some of Professor Epstein’s observations, such as the claim that Medicare needs serious reform, and the concern that, like many other government programs, Medicare started small but grew rather large. However, Kaplan argues that Epstein sometimes misses the point. For example, Kaplan responds to Epstein’s claim that Medicare gets less efficient as it grows by asserting that the better point is that Medicare is more efficient than its private sector counterparts. But Kaplan’s primary concern is his suspicion that many of Epstein’s criticisms stem from a “reflexive hostility” to governmental programs. Thus, Kaplan argues, Epstein fails to account for the need for Medicare in this country and fails to propose reforms that have any chance of being implemented.

Kaplan then analyzes current Medicare reforms such as Medical Savings Accounts, increasing the eligibility age, and means testing. He finds problems with each and argues that reform efforts should be focused instead on three areas: prescription drugs, nursing-home care, and preventive care. Finally, he concludes by asserting that the Medicare system is a fragmented patchwork that confuses those it serves the most–the elderly. Any reform, Kaplan argues, must include an effort to make the rules simpler and more cohesive.

* Professor of Law, University of Illinois. B.S. 1970, Indiana; J.D. 1976, Yale.

Should our society establish positive rights to health care that each citizen could claim, as many health policy analysts believe? Or should it provide only background rules of contract and property law and leave the provision of health care to the free market, as Richard Epstein advocates in Mortal Peril? In this article, Professor Korobkin argues that this question should be addressed from the Rawlsian “veil of ignorance” perspective. That is, the question should be answered by asking what kind of society would individuals agree to form if they had no knowledge of their individual skills or endowments; if they did not know whether they were rich or poor, healthy or sick, weak or strong.

Professor Korobkin contends that individuals behind such a veil of ignorance would balance their inherent risk aversion (which favors a safety net of “rights”) against the inefficient incentives created by rights regimes that would reduce net social wealth (which favors a free market). Whether they would choose to establish rights to health care or not is ultimately an empirical question that turns on how inefficient any particular right would be. The question thus requires a case by case analysis of proposed rights. The article then considers the policy issues of (1) community rating of private health insurance and (2) the mandated provision of emergency medical care. It concludes that in these cases the inefficient incentives created by establishing rights are probably small and/or controllable enough to lead individuals behind the veil of ignorance to favor a regime of positive rights.

* Assistant Professor, University of Illinois College of Law and University of Illinois Institute of Government and Public Affairs. This article has benefited from the helpful comments of Mark Hall, David Hyman, Tom Ulen, and Rufus Whitley, and from the excellent research assistance provided by Atul Saran.

Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal of treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded.

Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher’s response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.

* Visiting DeCamp Professor of Bioethics, Princeton University; Associate Professor of Law and Codirector, Center for Law and Health, Indiana University School of Law-Indianapolis. A.B. 1977, Brandeis University; M.D. 1981, Harvard Medical School; J.D. 1986, Harvard Law School. I am grateful for the contributions of Judy Failer.

In this paper, presented at the December 6, 1997, symposium addressing Richard Epstein’s Mortal Peril at the University of Illinois College of Law, Professors Rich and White examine Epstein’s theories regarding the merit of reduced government and increased market confidence by exploring the emerging role of the states in health care policy. Rich and White begin by discussing federalism and its changing forms since the Republican Revolution of 1994. They then consider state involvement and action in health policy since the mid 1980s. Using these two bases, the authors look to the future, arguing that although government downsizing in the manner occurring since the 1994 election may effectively reduce government, it will not do so without consequence. Rich and White conclude with an examination of the impact of the post 1994 federalism on Epstein’s theories of government and health care policy.

* Professor of Law and Political Science, University of Illinois and Professor in the Institute of Government and Public Affairs, University of Illinois.

** Professor and Chair, Department of Health Administration, College of Medicine, Yale University.

Professor Gary Schwartz discusses Richard Epstein’s views on medical malpractice in this article. Schwartz ultimately concludes that Epstein’s account of malpractice law and malpractice policy lacks illumination: medical malpractice does not fit the overall pattern that Epstein professes to find in health law generally. Schwartz also believes that Epstein’s analysis neglects the modern movement towards managed care, and all the ways in which that movement may be affecting the malpractice system. These oversights, according to Schwartz, make suspect Epstein’s recommendation that the problems with the malpractice system be solved solely by reliance on contract values.

* William D. Warren Professor, UCLA School of Law. Thanks to Elizabeth Wehr.

As one of the most controversial writers of our time, just the name Richard Epstein draws immediate attention from all sectors of academia. But if the hallmark of great ideas is the criticism they engender, Professor Epstein’s words and thoughts are powerful indeed. In Mortal Peril, Professor Epstein outlined a fundamental shift in thinking that he claimed needed to occur before any discussion of health care could take place. The final consensus of the validity of Professor Epstein’s views may still be a matter for history to judge, but in many ways, he has already won; with the strength of his logic and convictions, he has forced other scholars to address his concerns, and in doing so, he has refocused the debate on health care. At the symposium, Professor Epstein proved his indisputable eloquence and debating skill in answering and refuting the various points made by his many critics. Now, in writing, he thoughtfully considers and analyzes the views submitted by his colleagues, and solidifies the ideas that first found their expression in Mortal Peril.

*James Parker Hall Distinguished Service Professor of Law, The University of Chicago. A.B. 1964, Columbia College; B.A. 1966, Oxford University; L.L.B. 1968, Yale Law School. I should like to thank David Hyman on an earlier draft, and Michael Marina and Dan Somnes for their research assistance.

The legal requirement that a woman strongly resist a man’s sexual advances to prove that she was raped has largely disappeared from the statute books. Despite this, courts continue to look to the level of the woman’s resistance in judging the two key elements of rape–nonconsent and force. In so doing, Professor Michelle Anderson argues, courts judge women’s actions by reference to an ideal standard of behavior. Under this model, many women who did not consent to intercourse and who were overcome by force are deemed not to have been raped. At the same time, however, courts and legislators have now begun to discourage resistance to rapists, labeling it as a dangerous strategy for women.

Anderson argues that the apparent contradiction of discouraging resistance while holding women up to an ideal standard of resistance is a direct result of the argument that rape reformers advanced to abolish the resistance requirement. Reformers claimed that resistance risked serious bodily injury and even death to the victim. They thus believed that resistance should not be required, but failed to offer courts a new interpretive paradigm by which to evaluate a woman’s resistance. This, Anderson argues, was a mistake. Research shows that a woman’s active physical resistance to a rapist helps to avoid rape completion without increasing her risk of serious bodily injury. Anderson recommends that, while resistance should not be required to prove rape, a court should parse the factual record for evidence of resistance and allow it to weigh in fairly on behalf of the victim. Anderson proposes that resistance be revived in rape law by making any resistance–verbal or physical–sufficient, but not necessary, to prove rape.

* Assistant Professor, Villanova University School of Law. Thanks to Carlita Cannaday, Mary Clark, Steve Goldblatt, Vicki Jackson, Neal Katyal, Catherine Lhamon, Michael Olson, and Robin West for their criticism and suggestions. All errors are mine. Thanks to Associate Dean Anita Allen, Rebecca Kamp, and Karen Summerhill of Georgetown University Law Center and Margaret Coyne of Villanova University School of Law for their institutional support for this project. Janalyn Martinez-Carlo and Carolyn Wolpert provided excellent research assistance.

Article VI of the Federal Rules of Evidence addresses who may be impeached and the methods of impeachment. However, the common law methods of impeachment, such as bias and specific contradiction, are not enumerated in the rules. While some scholars have identified these omissions as gaps that need to be filled, Professor Imwinkelried argues that the rules are designed and work effectively, despite the omissions. By examining the development, purpose, and use of the Federal Rules of Evidence, the impeachment silence may be explained as legislative judgment to shift decision-making power from the appellate to the trial courts. Professor Imwinkelried concludes that there is no need to amend Article VI to fill the “seeming gaps.”

* Professor of Law, University of California at Davis; B.A., 1967, University of San Francisco; J.D., 1969, University of San Francisco; former chair, Evidence Section, American Association of Law Schools.

In this article, Professor Krawiec evaluates the relationship between derivatives hedging and shareholder wealth through an analysis of both the legal and financial academic literature. She contends that legal commentators who argue that corporate derivatives use requires a broad rethinking of traditional corporate law norms are mistaken. She further contends that if adopted by future courts judging management decisions regarding corporate hedging, such arguments raise a severe danger of undermining the business judgment rule as applied to management hedging decisions. She notes that much of the legal evaluation of derivatives hedging has focused on pure financial benefit to the corporate entity, without considering the costs and benefits to shareholders. Professor Krawiec attempts to remedy that weakness by identifying the various benefits that may accrue to shareholders from firm-level risk reduction through derivatives hedging. She suggests profiles of companies most likely to generate shareholder benefits through derivatives hedging. She then analyzes the empirical evidence of actual firm hedging practices to determine whether this behavior fits the company profiles previously developed. Professor Krawiec discusses the implications of her analysis for corporate decisionmaking and for legal policy. She concludes that firm-level risk reduction through derivatives hedging is a business decision, often benefitting shareholders, that should be protected by the business judgment rule as is any other disinterested, well-informed, investment or operating decision made in good faith by corporate management.

*Assistant Professor, University of Oregon School of Law. I would like to thank Professors Paul G. Mahoney and Richard W. Painter for helpful comments on earlier drafts of this article. I would also like to thank Maggie Finnerty and Phil Van Trease for superb research assistance.

Unbalanced budgets have sparked decades of debate among legislators, scholars, and the public at large. Although the controversy has abated somewhat in recent years given the pending budget surplus, many continue to believe that Congress has a tendency to pursue a level of public debt that is both inefficient and unfair. Foremost among those who criticize the federal budgeting process are fiscal constitutionalists, a group of public choice scholars who believe that constitutional constraints are the only means by which the public will obtain protection from legislative fiscal irresponsibility.

In this article, Professor Staudt explores the public choice argument for a balanced budget amendment. She first notes that public choice theorists reject budget constraints in the ordinary statutory context but support them if they are embedded into the Constitution. These divergent views are related to the idea that, unlike statutory decisionmakers, constitutional decisionmakers act behind a veil of ignorance, leading them to make choices that promote the overall public good. Professor Staudt argues that the veil (if it exists at all) will not completely obscure legislators’ understanding of the political costs associated with a balanced budget amendment. Accordingly, she asserts that the legislators are unlikely to adopt an effective balanced budget amendment but will act as if they support the measure in order to gain the support of those contributors and voters who embrace this type of fiscal reform.

Not only does Professor Staudt reject the claim that constitutions are always above politics, she argues that legislators may act for the greater public good in the ordinary statutory context. She points out that Congress has recently achieved a balanced budget despite the absence of a constitutional amendment mandating it to do so. This outcome might be the result of the political pressure generated by the decades of debate around unbalanced budgets and the near consensus that has evolved regarding the inefficiencies and unfairness associated with the high levels of public debt Congress has maintained. In short, the public choice theorists may have accomplished their goal of balanced budgets without forcing a change to our constitutional order–a change many have found deeply problematic.

* Associate Professor of Law, State University of New York at Buffalo.

In this note, the author examines the problem of bounty hunters, who are granted broader powers than police, yet remain largely unregulated. This has inevitably led to tragedies where bounty hunters have injured or killed fugitives and even innocent people. The author begins his search for a solution by tracing the history of the bail system as it originated in England and later evolved in the United States. Next, he describes the bail system in the United States as it functions today. The author concludes that bondsmen and bounty hunters are such a necessary and invaluable asset that they should not be eliminated, as some have suggested. Neither should they be subject to the same constitutional restrictions as police, for it is precisely their enhanced powers which allow them to bring back fugitives more effectively. Instead, the best approach is to curb the abuses of power by bounty hunters without unduly limiting them. This can be achieved, as Florida has recently done, by regulating bounty hunters through licensing.

The Sixth Amendment provides that a criminal defendant has the right “to have the Assistance of Counsel for his defense.” The Supreme Court has traditionally held that the Sixth Amendment does not only protect a criminal defendant at trial; it also ensures that the state does not circumvent a defendant’s rights during “critical” pretrial proceedings, including interrogations. Since the Court realized that criminal defendants are unlikely to voluntarily waive their rights in interrogations, the Court required a very high standard to establish a waiver of the Sixth Amendment right to counsel.

In 1966, the Supreme Court decided the case of Miranda v. Arizona. In Miranda, the Court held that the right to counsel is indispensable to protect an accused’s Fifth Amendment privilege against self-incrimination. Miranda and its progeny have been largely successful in increasing the scope of protection afforded to criminal defendants in interrogations. However, since Miranda, the Court has lost sight of the differences between the Sixth and Fifth Amendment rights to counsel. This confusion has led lower courts to further chip away at the Sixth Amendment right to counsel, degrading its importance as a fundamental right.

This note argues that the Supreme Court has misinterpreted the purpose and function of the Sixth Amendment right to counsel by equating it with the Fifth Amendment privilege against self-incrimination. The author argues that the Sixth Amendment right to counsel mandates a high standard of waiver for represented defendants after the initiation of adversary judicial proceedings, whether or not the defendant had “invoked” his right to counsel. The author then proposes two solutions that would allow lower courts to correctly preserve the Sixth Amendment right to counsel: (1) lower courts should require a high standard of waiver for all represented postindictment defendants; or (2) lower courts should employ their state constitutional rights to counsel to mandate a high burden of waiver after the initiation of adversary judicial proceedings, regardless of representation.