Law Commons^™

A Contractarian Approach To Unconscionability, Horacio Spector

Chicago-Kent Law Review

In this paper I discuss two nonpaternalistic defenses of the doctrine of unconscionability in contract law. The first approach, proposed by Seana Shiffrin, relies on the moral ban to collaborate with other agents' immoral plans. Because this prohibition falls also on the judge, she must refrain from enforcing unfair or exploitative contracts. The second approach regards the unconscionability doctrine as one limitation on freedom of contract that rational contractors would choose in the course of adopting the fundamental terms of social cooperation. I assess the implications and merits of the two approaches. 'The contractarian approach is capable of justifying procedural …

Tanks In The Streets: Suvs, Design Defects, And Ultrahazardous Strict Liability, Kevin Case

Chicago-Kent Law Review

SUV rollover crashes have been well-publicized and thoroughly litigated. Less attention has been paid to the lethal risks created by SUVs—particularly the latest "behemoth" SUVs like Hummers—to the occupants of other vehicles and pedestrians. Due to the design of SUVs, which are stiffer, heavier, and ride higher than cars, a collision between an SUV and a passenger car often results in catastrophic damage and injury to the occupants of the car, particularly when an SUV strikes a car broadside. Moreover, the design features of SUVs that create these dangers provide no utility or value to society. The "benefit" provided by …

Introduction, Horacio Spector

Chicago-Kent Law Review

No abstract provided.

Natural Rights And Two Conceptions Of Promising, Peter Vallentyne

Chicago-Kent Law Review

Does one have an obligation to keep one's promises? I answer this question by distinguishing between two broad conceptions of promising. On the normativized conception of promising, a promise is made when an agent validly offers to undertake an obligation to the promisee to perform some act (i.e., give up a liberty-right in relation to her) and the promisee validly accepts the offer. Keeping such promises is morally obligatory by definition. On the non-normativized conception, the nature of promising does not conceptually entail any connection with the obligation to keep promises. A promise might be understood, for example, as an …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Promises, Expectations, And Rights, Eduardo Rivera-Lopez

Chicago-Kent Law Review

I address the problem of why promises create obligations. First, I spell out and object the so-called "expectational account" according to which the duty to keep our promises arises from the fact that, when we promise to do something, we create an expectation in the promisee, which we have the duty not to disappoint. It has been claimed that this account is circular since we can only raise the expectation, in the appropriate sense, if we already have the moral duty to keep our promise. I argue, against Scanlon and others, that such circularity is unavoidable. In the second section, …

Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka

Chicago-Kent Law Review

This Article claims that for Kant a contractual obligation generates a universal right, meaning a right against everyone. Accordingly, a right to performance of a contract is more similar to a right in rem than to a right in personam, and failing to perform a contract is more similar to theft than to moral failure to do as promised. Part I shows that for Kant accepting a promise means taking possession of the promisor's choice to commit an act in the future. Part II explains why it is possible to acquire someone else's choice and how one does so in …

Rational Choice And Reasonable Interactions, Bruce Chapman

Chicago-Kent Law Review

Game theory probably offers the most well-known account of how rational agents interact in strategic situations. The rational thought processes that are involved, while enormously sophisticated, remain very private for each agent. Less well known is the alternative account that is offered by law and legal theory, an account where agents interact, and understand their interaction, under the idea of public (or objective) reasonableness. This Article argues, using some simple examples, that the legal account does better than the game theoretic account in explaining the actual levels of cooperation and coordination we observe across rational individuals in strategic situations.

Does Today's International Trade Agreement Bind Tomorrow's Citizen?, Gopal Sreenivasan

Chicago-Kent Law Review

Focusing on the example of the General Agreement on Trade in Services (GATS), this Article begins by describing an important analogy between domestic Bills of Rights and enforceable international trade agreements. Both effectively disable the majority in later generations from certain exercises of its domestic legislative power. While there is some kind of democratic presumption against disabling the majority in any generation from exercising domestic legislative power, various argumentative strategies have been employed to defeat this presumption in the domestic constitutional case. This Article reviews these strategies and argues next that they cannot be generalized to the case of international …

Re-Enfranchisement Laws Provide Unequal Treatment: Ex-Felon Re-Enfranchisement And The Fourteenth Amendment, Cherish M. Keller

Chicago-Kent Law Review

Individuals convicted of a felony lose the right to vote at least temporarily in most states, and ex-felons are disenfranchised for life in seventeen states. There are often procedures by which ex-felons may regain the right to vote in the lifetime disenfranchisement states, but the procedures vary widely and are often unclear and unrealistic. The right to vote is fundamental once provided by a state, and wealth discrimination coupled with a fundamental right merits strict scrutiny. While ex-felon disenfranchisement may be constitutional, once a state provides a procedure by which ex-felons may regain the right to vote, that procedure must …

It's As Clear As Mud: A Call To Amend The Federal Trademark Dilution Act Of 1995, Matthew C. Oesterle

Chicago-Kent Law Review

The Federal Trademark Dilution Act ("FTDA") has failed to protect, in the manner intended by Congress, the subset of trademarks that have achieved a high threshold of fame from subsequent uses that dilute or tarnish those trademarks. Courts have applied inconsistent measures of fame to the trademarks of the litigants before them and a poor wording choice in the drafting of the FTDA has led the Supreme Court to conclude that famous trademarks must sustain actual harm to their distinctiveness before their owners can receive the equitable remedy provided under the Act. Based on the legislative history of the Act, …

Amending The Natural Born Citizen Requirement: Globalization As The Impetus And The Obstacle, Sarah P. Herlihy

Chicago-Kent Law Review

With the rise of non-native-born American politicians, the natural born citizen requirement in the United States Constitution has received much publicity. This note examines the history and background of the requirement that our President be born in this country. This note then focuses on how the increase of globalization should compel Americans to pass a constitutional amendment to repeal the natural born citizen requirement and discusses the reasons why many Americans oppose such a constitutional amendment. The note then explores some of the current misconceptions about globalization and concludes that Americans' fears and misconceptions of globalization may very well prevent …

Vol. 22, No. 4, Rochelle Gordon, Brian Clauss

The Illinois Public Employee Relations Report

Contents:

Privatization of Public Educational Services: The Application of the Doctrine of Successorship in the No Child Left Behind Era, by Rochelle Gordon and Brian Clauss

Recent Developments

Further References, compiled by Yoo-Seong Song

The Wipo Joint Recommendation Protecting Well-Known Marks And The Forgotten Goodwill, Maxim Grinberg

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Contracts, Copyright, And Confusion: Revisiting The Enforceability Of 'Shrinkwrap' Licenses, Steven A. Heath

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Past, Present, And Future Of Protecting One's Copyright In The Digital Age: What The Entertainment Industry Has Done To Protect Its Rights, And Whether This Is A Beneficial Strategy For The Copyright Holder And Society, Sally L. Parker

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Media Neutrality In The Digital Era: A Study Of The Peer-To-Peer File Sharing Issues, Huei-Ju Tsai

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Thwart A Tyrant By Resolving Land Crisis, Bernadette Atuahene

All Faculty Scholarship

No abstract provided.

Vol. 22, No. 3, Vickie A. Gillio, Laura H. Anderson

The Illinois Public Employee Relations Report

Contents:

The Potential Implications of the University of Michigan Cases on Public Sector Employment: Opening Up Leadership in the Public Sector Workplace?, by Vickie A. Gillio with the assistance of Laura H. Anderson

Recent Developments

Further References, compiled by Yoo-Seong Song

Bounded Rationality Of Homo Classificus: The Law And Bioeconomics Of Social Norms As Classification, Janet T. Landa

Chicago-Kent Law Review

In the "New Chicago School" ("NCS") law and economics literature that emerged in the 1990s, social norms play an important function in their dual role as constraints on behavior and as signaling devices. Missing in the NCS social norms literature, however, is any treatment of social norms as classification, a concept which is fundamental to a more complete theory of social norms. In this Article, I show that my early 1980s theory of social norms embedded in the ethnically homogeneous middleman groups ("EHMGs") clearly falls squarely within the NCS tradition. Since the 1980s, I have extended my law and economics …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

The Legal Function Of Ritual, Geoffrey P. Miller

Chicago-Kent Law Review

This Article offers a theory of ritual as social control. It argues that an important function of rituals is to align personal identities with social roles. The celebratory aspect of rituals reflects the sense of felicity that accompanies the successful alignment of identity and role. Violence in ritual reflects the fact that the alignment of identity and role is compulsory and often imposes significant costs on personal autonomy. Within the framework of this theory, rituals can be classed into three general types: rituals of reformation (e.g., marriage, initiation, and installation) help align identity and role; rituals of renewal (e.g., religious …

Introduction, Claire A. Hill

Chicago-Kent Law Review

No abstract provided.

Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein

Chicago-Kent Law Review

Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific "dual process" perspective that distinguishes between "deliberative" and "emote" control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence …

Rational Choice And Rat Choice: Some Thoughts On The Relationship Among Rationality, Markets, And Human Beings, Edward L. Rubin

Chicago-Kent Law Review

For about 2,500 years, the term rationality has been used in the Western world to describe the application of human reason to a wide range of problems or issues. In the past thirty years, however, the term has been appropriated by microeconomists and microeconomically-oriented social scientists to mean something quite different—the application of instrumental rationality to the particular problem of material self-interest maximization. This Article will attempt to recapture the original meaning of the term rationality, and explain the place of the microeconomic model within it. Using Weber's distinction between instrumental rationality and values rationality, it will argue that all …

Pets Or Meat, Mary Anne Case

Chicago-Kent Law Review

I am interested in exploring questions of whether and when commingling commodification with affection is more problematic than naked commodification. My title comes from the scene in the Michael Moore film Roger and Me depicting the marketing of rabbits. The dynamic I am interested in is common, not only in human relations with other animals, from lab and farm animals to pets, but also in pink collar work. The secretary given flowers instead of a bonus, the housekeeper whose employers say of her, "she's one of the family"—each of these cases is troubling, although it is not clear that more …

For Love Or Money: Some Emotional Foundations Of Rationality, Gerald L. Clore

Chicago-Kent Law Review

Having emotions represents what people value. Just as cognition concerns whether things are true and false; emotion is about whether they are good or bad. Thus, emotion may be a necessity for rationality, rather than its antithesis. Our emotion research shows that emotional feelings provide compelling information about the value of outcomes, actions, and objects. As a result, although it can also lead to excess, emotions provide a coherent basis for judgment and decision. In addition, I suggest that the current psychological theory is helpful in thinking about rationality because it assumes more than one mode of reasoning. Similarly, current …

Neuroeconomics And Rationality, Terrence Chorvat, Kevin Mccabe

Chicago-Kent Law Review

The assumption of rationality is both one of the most important and most controversial assumptions of modern economics. This Article discusses what current experimental economic as well as neuroscience research tells us about the relationship between rationality and the mechanisms of human decision making. The Article explores the meaning of rationality, with a discussion of the distinction between traditional constructivist rationality and more ecological concepts of rationality. The Article argues that ecological notions of rationality more accurately describe both human neural mechanisms as well as a wider variety of human behavior than do constructivist notions of rationality.

Roundtable Discussion: Must We Choose Between Rationality And Irrationality?, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

By Its Fruits Shall Ye Know; Axson-Flynn V. Johnson: More Rotted Fruit From Employment Division V. Smith, Bradley C. Johnson

Chicago-Kent Law Review

The Supreme Court's decision in Employment Division v. Smith has been widely criticized for decimating the Free Exercise Clause and leaving free exercise rights vulnerable. Critics maintained that the Supreme Court's decision in Smith to shift protection of free exercise rights to primarily the political process would have devastating consequences for religious individuals. In Axson-Flynn v. Johnson, decided fifteen years after Smith, one of those consequences has become clear: a state university can constitutionally require an individual to swear as part of an acting program, even if swearing violates that individual's deeply held religious beliefs. This result of …