Illinois Public Law Research
Since Fall 2000, faculty members at the University of Illinois College of
Law have published their recent scholarly papers online through the Legal Scholarship
Network of the Social Science Research Network. The online publication of works-in-progress
and of forthcoming articles has become increasingly popular among top-flight law
faculty, and the College of Law faculty is very pleased to have joined in this
exciting enterprise. (To see the entire scope of offerings at the Social Science
Research Network, please visit www.ssrn.com)
Illinois Public-Law Research papers published to date in this series are shown
below with authors and titles. You may click on the paper's title to access an
Adobe Acrobat Reader version of the piece for downloading. (For a free copy of
Acrobat Reader, click here.) Some of these
papers have been published in leading journals since their posting on the SSRN
website. Please check with us or with the author if you would like to have a reprint
of the article as published.
If you would like to have hard copies of the papers mailed to you, please
contact Pat Estergard at (217) 333-9853 or pesterga@law.uiuc.edu.
If you have any other questions about the series, please contact either of us
via email.
James E. Pfander, Prentice H. Marshall Professor of Law
jpfander@law.uiuc.edu
N E W and F O R T H C O M I N G Articles
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"Property Rights, The Market, and Environmental Change in Twentieth-Century
America"
Property, Land, and the Environment, 2001, Forthcoming
BY: ERIC T. FREYFOGLE
University of Illinois College of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=288994
Paper ID: Illinois Public Law Research Paper No. 00-01
Contact: ERIC T. FREYFOGLE
Email: Mailto:EFREYFOG@law.uiuc.edu
Postal: University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820 USA
Phone: 217-333-8713
Fax: 217-244-1478
ABSTRACT:
In this wide-ranging interpretive essay, Professor Eric Freyfogle surveys the
dominant trends over the past-century in the laws governing private land ownership
in the United States. Late in the nineteenth century, he contends, property law
had come close to embracing an image of land chiefly as market asset, with ownership
rights clearly defined, secure against governmental interference, and freely transferable.
It also embraced a perspective in which landowners could use their lands intensively,
in ways that generated harms, to neighbors and surrounding communities, that would
not have been allowed a century earlier. That system of ownership, Freyfogle argues,
generated substantial ill effects, and property law over the past century has
gradually responded to them, in the process reshaping land ownership in ways quite
different from simple, land-as-asset models. He distills six major themes or trends,
including (i) the tailoring of rights to the land's natural features and the increasing
protection of sensitive land uses,
(ii) increasing recognition of private and public interests in all lands, without
regard to nominal ownership, (iii) continued protection of existing land uses
but decreasing protection for development rights, (iv) land-use planning at larger
spatial scales and more ecologically oriented, and (v) increasing involvement
of all levels of government in insisting that land-use practices not frustrate
community needs. The end result is an ownership scheme reflecting both market
and communal interests, with ownership rights subject to controls to protect the
collective good from unbridled market forces.
______________________________
"Has the WTO Dispute Settlement System Exceeded Its Authority?"
Journal of International Economic Law, Vol. 79, 2001
BY: WILLIAM J. DAVEY
University of Illinois College of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=289249
Paper ID: Illinois Public Law Research Paper No. 00-02
Contact: WILLIAM J. DAVEY
Email: Mailto:WDAVEY@law.uiuc.edu
Postal: University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820 USA
Phone: 217-333-0104
Fax: 217-244-1478
ABSTRACT:
A systematic study of 38 adopted decision of the Appellate Body and Panels since
the inception of the WTO Dispute Settlement System leads to the conclusion that
the WTO Dispute Settlement System remains generally within the boundaries of its
authority. With a few limited exceptions, the system has shown appropriate deference
to legitimate policy decisions made by WTO Member Governments. Further, US and
international law rules on techniques used to dispose of cases (or issues within
cases) where a decision seem unnecessary or inappropriate could be used more frequently
with regard to the timing of consideration of issues (mootness and ripeness) as
well as the exercise of judicial economy.
______________________________
"Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior
Tribunals"
Texas Law Review, Vol. 78, Pp. 1433, June 2000
BY: JAMES E. PFANDER
University of Illinois College of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=289355
Paper ID: Illinois Public Law Research Paper No. 00-04
Contact: JAMES E. PFANDER
Email: Mailto:jpfander@law.uiuc.edu
Postal: University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820 USA
Phone: (217) 333-8237
Fax: (217) 333-8237
ABSTRACT:
Most accounts of the power of Congress over the appellate jurisdiction of the
Supreme Court focus on the Exceptions and Regulations Clause and the degree to
which it authorizes Congress to restrict the Court's role as the ultimate interpreter
of federal law. In this Article, Professor Pfander proposes to broaden the debate
over jurisdiction stripping to include a consideration of the constitutional significance
of the Court's required "supremacy." Beginning with the text of Articles
I and III, Pfander notes the requirement that any federal courts that Congress
creates must remain "inferior" to the one Supreme Court that the Constitution
itself requires. Pfander shows that the framers of the Constitution were likely
to have understood the required relationship of supremacy and inferiority to entail
a power in the Supreme Court to supervise lower courts through the issuance of
the supervisory writs of mandamus, prohibition, and habeas corpus. Building on
this supervisory understanding of the Court's supremacy, Pfander reviews the historical
and doctrinal case for a constitutional power of supervision. Finding broad support
for such a power in the adoption and interpretation of the statutory precursors
of the modern All Writs Act, Pfander concludes that Congress may not place the
work of lower federal courts beyond the supervisory authority of the Court.
______________________________
"The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency
or Crucial Predictability?"
Marquette Law Review, Vol.85, Pp. 79, 2001
BY: ELLEN E. DEASON
University of Illinois College of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=289402
Paper ID: Illinois Public Law Research Paper No. 00-05
Contact: ELLEN E. DEASON
Email: Mailto:edeason@law.uiuc.edu
Postal: University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820 USA
Phone: 217-333-1286
Fax: 217-244-1478
ABSTRACT:
This article explores the importance of confidentiality in mediation, the need
for uniformity in parties' expectations for that confidentiality, and the confidentiality
protections of the Uniform Mediation Act (UMA) adopted by the National Conference
of Commissioners on Uniform State Laws in August 2001. Professor Deason argues
that confidentiality is important for three separate reasons: to promote communication
with the mediator and the adversary party; to maintain the neutrality of the mediator;
and, in litigation, to keep mediation and judicial functions separate. She maintains
that in order for confidentiality to have its desired effects during mediation,
parties must be able to anticipate the protections that would apply in later litigation.
The current variability in confidentiality protection among jurisdictions, the
multiple forum options that are frequently available, and the overwhelming uncertainties
in applicable law-in terms of both choice of law and courts' interpretations of
poorly drafted and ambiguous provisions-combine to make predicting confidentiality
difficult and unrealistic. Uniformity in state confidentiality provisions would
largely bypass these problems and is the only practical approach for improving
predictability. Professor Deason closes by discussing the close, and sometimes
controversial, policy calls embodied in the UMA privilege, in particular the exceptions
that call for judicial balancing. She concludes that states should look beyond
their current individual policy choices to the contribution uniformity would make
in the overall climate for mediation.
______________________________
W O R K I N G P A P E R Abstracts
_________________________________________________________________
"Confucian Constitutionalism: Globalization and Judicial Review in Korea
and Taiwan"
BY: TOM GINSBURG
University of Illinois College of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=289255
Paper ID: Illinois Public Law Research Paper No. 00-03
Contact: TOM GINSBURG
Email: Mailto:tginsbur@law.uiuc.edu
Postal: University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820 USA
Phone: 217-244-7614
Fax: 217-244-1478
ABSTRACT:
This paper documents the recent emergence of judicial review of legislative and
administrative action in Korea and Taiwan, two East Asian countries seen to be
historically resistant to notions of judicial activism and constitutional constraint.
It argues that the ability to draw from foreign legal traditions, especially those
of the United States and Germany, empowered judges in these countries and therefore
helped to alter the structure of public law away from executive-centered approaches
of the past. Nevertheless, the institution of judicial review can be described
in terms compatible with the Confucian tradition, a point that has implications
for how we think about globalization and institutional transfers across borders.
By constructing a locally legitimate account of what is undeniably a modern institution
of foreign origin, the paper argues that globalization should not be viewed as
an imposition of Western norms, but as a more complex process of adaptation and
institutional transformation.
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