Editor-in-Chief: Jake Jost

Managing Editor: Caitlin Harrington

Executive Editor: Dan Raymond

Executive Production Editor: Elliott Bacon

Managing Articles Editor: Scott Elmer

Articles Editors: Hannah Costigan-Cowles, Jane Dudzinski, Vanessa Savino, James Schmidt, Justin Trapp

Managing Notes & Comments Editor: Angela Gilbert

Notes & Comments Editors: Anthony DeLaPaz, Angela Gilbert, James Liu, Katie Robillard, Amy Timm, John Tully

First, Professors Frank Cross, Tonja Jacobi & Emerson Tiller discuss and identify the dominant factors in judicial decision making, at both the higher and lower court level—legal obedience and political ideology. Within that framework, they show how six factors determine higher court choice over rules versus standards: political alignment within the hierarchical judicial system, the distribution of case facts, the inherent control characteristics of rules versus standards, the effect of overlapping doctrines, the extent that lower court discretion is unavoidable, and the effect of political heterogeneity on a multimember higher court.

Next, Professor Nicole Stelle Garnett constructs a case for mixed-land-use planning that tackles the uncomfortable reality presented by studies suggesting that commercial land use generates, rather than suppress, crime and disorder, and that suburban communities have higher levels of social capital than urban communities. The case is built upon an apparent paradox: in urban communities, people do not, apparently, make us safer. But they do make us feel safer. This “People Paradox” suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

Following this, Professor James A. Henderson, Jr. offers a descriptive, instrumental analysis of U.S. contract law as a problem-solving enterprise, and argues that problem solving, both private and public, is the primary focus of U.S. law generally and contract law in particular. His analysis models the building-block concepts of problems, solutions, and methods of implementation, describing how individuals, groups, and governmental institutions reach and implement solutions. He then uses this problem-solving perspective to explain aspects of U.S. contract law, such as the unenforceability of gift promises and gambling contracts, that traditional bargain theories cannot explain adequately, if at all. His unique perspective also explains why courts cannot function effectively as problem solvers.

Next, Professor Amy B. Monahan provides the first comprehensive study of the state legislative process with respect to health insurance content regulation. In the states studied, Professor Monahan finds that both fairness and welfare claims influence mandate passage, with little reliance by legislators on outside evidence substantiating welfare claims. Given the findings, Professor Monahan argues that the federal government should be hesitant to rely upon existing state-level regulation when it defines “essential health benefits” as part of health care reform.

The issue continues with the David C. Baum Lecture by Professor Richard J. Lazarus in which he reviews the remarkable string of seventeen straight losses that environmental plaintiffs have suffered in Supreme Court cases arising under the National Environmental Policy Act (NEPA) and challenges the accepted wisdom that these rulings reflect the Court’s hostility toward environmental protection.

The issue concludes with two student notes by Justin Walters and Brittany Viola.

In this symposium issue the University of Illinois Law Review presents the speaker contributions of the Law and Economics Conference to Honor Thomas S. Ulen, held on November 19-20, 2010 at the University of Illinois College of Law. The many articles presented at the conference may be found on the Issue 5 page.

The issue concludes with three student notes by David Artman, Devon Curtis Beane, and Alan Wendler Hersh.

First, Professor Steven L. Schwarcz discusses how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. He identifies and attempts to resolve the resulting law and business issues of first impression and also examines, more normatively, the extent to which microfinance lending should rely on capital market funding sources.

Next, Professors Afsheen John Radsan & Richard Murphy discuss CIA-targeted killings, the foundational international humanitarian law (IHL) principles to develop limits on the CIA’s campaign in Pakistan and on the possible extension of that campaign to other countries outside the United States. In particular, the authors argue that IHL’s requirements of distinction and military necessity generally require the CIA to achieve a very high level of certainty that a targeted person is a legitimate object of attack before carrying out a drone strike.

Following this, Professor Daniel B. Rodriguez discusses some fundamental aspects of constitutional government in the contemporary United States. With reference to specific examples of constitutional architecture, he explores the question of how we assess state constitutional failure and how, on the basis of this assessment, we can best undertake structural, institutional, and doctrinal reform.

Next, Professor Noah M. Sachs reassesses the Strong Precautionary Principle and highlights the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. He uses chemical regulation and the major overhaul that Congress is considering of the flawed Toxic Substances Control Act of 1976 (TSCA), as a case study in how the Principle can guide Congress in an ongoing controversy. In particular, he advocates implementing the Strong Precautionary Principle in a replacement statute for TSCA.

The issue continues with the David C. Baum Lecture by Professor Frederick Schauer in which he discusses the challenges associated with the often-touted virtues of transparency in public decision making, offering a proposed framework for assessing the goals and principles associated with transparency, transparency’s costs and benefits, and how transparency is related to other principles, including those of the First Amendment.

The issue concludes with three student notes by Melissa Carrington, Matthew D. Friedlander, and Ryan M. Rappa.

First, Professor Avishalom Tor & William J. Rinner discuss the Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which has resurrected the debate over resale price maintenance (RPM). They present, among other things, behavioral analysis which reveals that real-world, boundedly rational manufacturers are prone to use RPM even in circumstances in which it is neither rationally procompetitive nor rationally anticompetitive.

Next, Professor Irene Calboli discusses the practice of trademark merchandising, and advocates in favor of providing limited legal protection to trademark merchandising under the current rule of trademark law.

Following this, Professor Kathleen Clark examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight, and puts this issue into the larger context of Congress’s right to access national security-related information and discusses congressional mechanisms for protecting the confidentiality of that information.

Next, Professor Adam M. Gershowitz argues that if legislatures are seeking to hold guilty offenders of drunk driving accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. He outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United State

The issue continues with the David C. Baum Lecture by President Lee C. Bollinger where he discusses globalization, the necessity of establishing a free and open press able to report on a globalized society, the evolution of journalistic institutions in the United States, and the alarming decline in the international reporting capacity of the U.S. media.

The issue concludes with four student notes by Gregory A. Marrs, Courtenay E. Moran, Trevor K. Scheetz, and Angela Snell.