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The Doomed Constitutional Case Against Exclusive Representation, Michael M. Oswalt
The Doomed Constitutional Case Against Exclusive Representation, Michael M. Oswalt
College of Law Faculty Publications
When the Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees (AFSCME) in 2018, the decision not only made it unconstitutional for public sector unions to require “fair share fees” for negotiating contracts and defending workers, it also set off a litigation landslide. Literally hundreds of cases have waded through the courts urging various theoretical extensions of Janus that—boiled down—seek to starve unions and their members of even more funding
Burnout Doesn't Frighten Me, Meredith A.G. Stange
Burnout Doesn't Frighten Me, Meredith A.G. Stange
College of Law Faculty Publications
This past semester we all taught during an unprecedented worst-case scenario, moving our courses online at the literal drop of a hat. Although I know my experience is not unique, from March to the end of the semester in May, I felt like I was just treading water. I realized that feeling unsure of myself, feeling disconnected from my students, and feeling like I was just treading water really was not me. In fact, I had not felt this way in the classroom since my first few years of teaching. Those were days I did not want to revisit because, …
Voting Like A Duck: Reflecting On A Year Of Legal Writing Voting Rights, Meredith A.G. Stange
Voting Like A Duck: Reflecting On A Year Of Legal Writing Voting Rights, Meredith A.G. Stange
College of Law Faculty Publications
Over the years, in various legal writing forums, I have heard that legal writing professors should try to “look like ducks.” This means we should publish, teach doctrinal courses, and otherwise do everything we can to make ourselves look like the tenure-track, non-legal writing faculty. The theory is that the more we look like tenure-track faculty, the harder it will be to treat those of us who are not tenure track differently. This has always bothered me because it seems to minimize the work that legal writing professors do and makes it seem that in order to have value, we …
Civil Penalties Against Public Companies In Sec Enforcement Actions: An Empirical Analysis, David Rosenfeld
Civil Penalties Against Public Companies In Sec Enforcement Actions: An Empirical Analysis, David Rosenfeld
College of Law Faculty Publications
Civil penalties have become an increasingly important part of the Securities and Exchange Commission’s (SEC) enforcement program. The SEC now routinely obtains large civil penalties in enforcement actions, regularly trumpets those penalties in press releases, and highlights the penalty amounts in its end-of-the-year statistics. Civil penalties are defended on the ground they are necessary to make unlawful conduct costly and painful, and thereby deter misconduct and promote adherence to lawful and ethical standards of behavior. But with respect to one category of cases, civil penalties have always been controversial: when civil penalties are assessed against public companies, the cost of …
Help Me, Help You: What You Should Know Before You Ask For Help, Meredith A.G. Stange
Help Me, Help You: What You Should Know Before You Ask For Help, Meredith A.G. Stange
College of Law Faculty Publications
I got an email the other day from a student who was having some difficulty writing his arguments. The student wrote that he kept rewriting his arguments in response to my comments but that he still had not been able to get them written satisfactorily. I could tell the student was frustrated and I could also tell that, for the moment, at least, I was the target of that frustration. Essentially, the student was telling me that he had changed things in accordance with my comments, but I still was not happy. Having been teaching for fifteen years, the frustration …
The Impact Of Insider Trading On The Market Price Of Securities: Some Evidence From Recent Cases Of Unlawful Trading, David Rosenfeld
The Impact Of Insider Trading On The Market Price Of Securities: Some Evidence From Recent Cases Of Unlawful Trading, David Rosenfeld
College of Law Faculty Publications
The government's recent crackdown on insider trading has revived an old debate about the wisdom of insider trading prohibitions. Opponents of insider trading laws often argue that insider trading contributes to market efficiency because it brings information to the market which gets incorporated into the price of the security, leading to more accurate pricing in a more timely fashion. Although this argument is intuitively appealing and has some empirical support, a look at some recent cases of known insider trading reveals situations where the market fails to detect the presence of informed traders, and even instances where the stock price …
Suing Principals Alone For The Acts Of Agents, Jeffrey A. Parness, Alexander Yorko
Suing Principals Alone For The Acts Of Agents, Jeffrey A. Parness, Alexander Yorko
College of Law Faculty Publications
This past August the Illinois Appellate Court, in Yarbrough v. Northwestern Memorial Hosp., suggested there was never a need to join, or to continue to join, an agent when pursuing a vicarious liability lawsuit against its principal. Herein, we review this statement in Yarbrough. We then counsel lawyers and judges regarding future suits against principals based on the acts of agents. When it reviews the apparent agent issue in Yarbrough, perhaps the Supreme Court will clarify when the joinder of principals and agents may be required.
Wrongful Convictions And Their Causes: An Annotated Bibliography, Clanitra Stewart Nejdl
Wrongful Convictions And Their Causes: An Annotated Bibliography, Clanitra Stewart Nejdl
College of Law Faculty Publications
This Annotated Bibliography directs attorneys to relevant, select legal periodical articles written from 2010 to 2016 on wrongful convictions and their causes. The authors focus on five major causes that lead to wrongful convictions, as evidenced by the literature. Part I of the Annotated Bibliography focuses on resources that discuss false confessions as a cause of wrongful convictions. Part II discusses resources that address the role of police and prosecutorial practices, including misconduct, in wrongful convictions. Part III provides articles on eyewitness and jailhouse informant issues related to wrongful convictions. Part IV contains articles that deal with how forensic evidence …
The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie Jr.
The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie Jr.
College of Law Faculty Publications
Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts. Commentators have long recognized that neither the Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to …
Amor Y Esperanza: A Latina Lesbian Becomes A Law Professor, Elvia R. Arriola
Amor Y Esperanza: A Latina Lesbian Becomes A Law Professor, Elvia R. Arriola
College of Law Faculty Publications
Writing about my presence in the legal academy is about identifying the act of resistance in simply being myself as a Latina lesbian who was trying to develop as a feminist legal theorist when I thought about law teaching as a career in the late 1980s. Now recently retired, I can be grateful that I became a law professor at a time when fairly serious efforts were being made to diversify law faculties with the hiring of more women and racial and ethnic minorities. But in 1991, when I entered the academy as an assistant professor, not many law professors …
'Yo, Prof!' Is Not The Proper Way To Address Me: Using A Status Email Assignment In First-Year Legal Writing To Address Issues With Student Correspondence, Meredith A.G. Stange
'Yo, Prof!' Is Not The Proper Way To Address Me: Using A Status Email Assignment In First-Year Legal Writing To Address Issues With Student Correspondence, Meredith A.G. Stange
College of Law Faculty Publications
As academic success professionals,we are used to focusing on student issues with legal analysis and understanding complex legal concepts. However, often our students need help with the more mundane. One such mundane issue gave rise to a status email assignment that incorporates basic professional communication skills into the 1L Legal Writing course.
The Inadvisability Of Nonuniformity In The Licensing Of Cover Songs, Yolanda M. King
The Inadvisability Of Nonuniformity In The Licensing Of Cover Songs, Yolanda M. King
College of Law Faculty Publications
In February 2015, the U.S. Copyright Office released a report entitled Copyright and the Music Marketplace, which summarizes its study of the music industry and recommends significant revisions to copyright law in response to the rapidly changing demands of the industry. Among its recommendations, the Copyright Office proposes an amendment to section 115(a)(2) of the Copyright Act. Currently, section 115(a)(2), referred to as the compulsory licensing provision of copyright law, permits someone to record a new version of a previously recorded and publicly distributed song, regardless of the format of the newly recorded version. The revised section 115(a)(2) would require …
Bust Out Without Breaking Up, Michael M. Oswalt
Bust Out Without Breaking Up, Michael M. Oswalt
College of Law Faculty Publications
(Response to “Careful What You Wish For: A Critical Appraisal of Proposals to Rebuild the Labor Movement” by Lance Compa, originally published in New Labor Forum on December 28, 2015). Lance Compa is right: alt-labor relies heavily on union support, and it’s not self-sustaining. But the conclusion he draws—that it’s a lot of flash and no fix—is only half-right. The truth is, we should feel optimistic about “traditional” labor because of alt-labor, not in spite of it. The two futures are linked, and supporting alt-labor may be the smartest way for unions to put fuel to the flashes and get …
The Due Process Failings Of Student Disciplinary Board Hearings, Marc D. Falkoff
The Due Process Failings Of Student Disciplinary Board Hearings, Marc D. Falkoff
College of Law Faculty Publications
If you want to understand why the “technicalities” of a criminal trial are important — things like hearsay rules, an elevated burden of proof and the right to counsel — try sitting in on a university disciplinary hearing, where students face penalties as severe as expulsion but where such protections don’t apply.
Illinois Supreme Court Should Consider Reasonable Doubt Issue, Marc D. Falkoff
Illinois Supreme Court Should Consider Reasonable Doubt Issue, Marc D. Falkoff
College of Law Faculty Publications
Last month, a state appellate court reversed the conviction of Mark Downs —a gang member serving 70 years for the murder of a 6-year-old boy — because the trial court attempted to answer a jury question about the definition of reasonable doubt. The case marks at least the third time since 2011 that serious convictions have been overturned because a judge tried to explain the meaning of reasonable doubt to a jury. Although there was good reason to reverse the conviction in Downs, the legal premise the appellate court relied on was flawed. At this point, the Illinois Supreme Court …
Fascinating Legal Questions Posed In Recent Criminal Law Cases, Marc D. Falkoff
Fascinating Legal Questions Posed In Recent Criminal Law Cases, Marc D. Falkoff
College of Law Faculty Publications
Each month, as I prepare to draft this column, I place new judicial opinions from the Illinois criminal courts into a file folder. I also add newspaper clips covering all sorts of crime-related topics, from flawed police procedures, to unusual charging decisions, to strange defense strategies, to unlikely convictions and exonerations. At the end of the month, the folder is an olio of criminal-law topics. But there’s always a common thread running through the pieces. On first reading, each item seems counterintuitive or misguided in some way. It leaves me scratching my head and wanting to figure out the unexamined …
Eavesdrop Law's Demise Means Loss Of Privacy, Marc D. Falkoff
Eavesdrop Law's Demise Means Loss Of Privacy, Marc D. Falkoff
College of Law Faculty Publications
Last month, the Illinois Supreme Court struck down a key provision of our state’s anti-eavesdropping laws. The high court held in a pair of cases that it’s unconstitutional to punish someone as a felon simply for audio recording a conversation without consent.
Pro Bono Scholars Idea Could Enhance Legal Education, Provide Aid To Needy, Marc D. Falkoff
Pro Bono Scholars Idea Could Enhance Legal Education, Provide Aid To Needy, Marc D. Falkoff
College of Law Faculty Publications
New York’s chief judge, Jonathan Lippman, is floating an idea that in one fell swoop would alter the structure of legal education in his state and enhance legal services for the poor. His Pro Bono Scholars proposal would allow law students to take the bar exam in February of their 3L year, on the condition that they spend the last semester of law school doing unpaid legal work for the poor. There are many hoops to jump through before the plan becomes reality in New York, but the innovative concept is one that Illinois should seriously consider too.
Overcorrecting Jury Instruction Errors, Marc D. Falkoff
Overcorrecting Jury Instruction Errors, Marc D. Falkoff
College of Law Faculty Publications
In November, a state appellate court threw out the first-degree murder conviction of Daniel Belknap, who had been found guilty in the beating death of a young girl in 2006. The Illinois Supreme Court is now deciding whether to hear a challenge to that decision in order to clarify the law on “plain error” review. It should. People v. Belknap is important because, as the state argues, some appellate courts are misapplying plain-error doctrine. Beyond that, the case is significant because it highlights the dubious value of recent Supreme Court case law on how trial courts conduct voir dire. Hidden …
Life Without Parole For Juveniles And The Retroactivity Mess, Marc D. Falkoff
Life Without Parole For Juveniles And The Retroactivity Mess, Marc D. Falkoff
College of Law Faculty Publications
Over the past year, the Illinois appellate courts have been making a muddle of our state’s retroactivity doctrine, stretching the law by ordering some prisoners who committed murders as juveniles to be resentenced. The impulse is honorable, but the legal reasoning is flimsy. Cleaning up the mess is a job for the Illinois General Assembly.
Serious Discussions Needed On Police Tactics And False Confessions, Marc D. Falkoff
Serious Discussions Needed On Police Tactics And False Confessions, Marc D. Falkoff
College of Law Faculty Publications
It’s a phenomenon that detectives, prosecutors, jurors and even defense lawyers typically have trouble believing: Sometimes suspects will confess to serious crimes even when they are completely innocent. “I certainly wouldn’t confess to a crime I didn’t commit!” we all think. But false confessions happen all the time and recent DNA exonerations and psychological studies suggest they occur more frequently than anyone involved with the criminal justice system should tolerate. Journalists and academic researchers increasingly understand how the typical police interrogation in the United States is structured to elicit confessions rather than gather accurate information about a crime. The techniques …
Investigative Alerts: Smart Policy Or A Way To Skirt Warrants?, Marc D. Falkoff
Investigative Alerts: Smart Policy Or A Way To Skirt Warrants?, Marc D. Falkoff
College of Law Faculty Publications
Chicago’s little-understood “investigative alert” system has been in the news a lot in the past year. It was denounced by an appellate court judge as an “end run” around the Constitution and criticized in a news story as a way to “sidestep” civil liberties protections. “Critics: Police Sidestep Warrants,” Chicago Tribune (March 4, 2013). But what exactly are investigative alerts? Are they constitutional? And if so, are they smart policy?
Dictionary Blues: Judicial Reasoning Muddied By Definition Wrangling, Marc D. Falkoff
Dictionary Blues: Judicial Reasoning Muddied By Definition Wrangling, Marc D. Falkoff
College of Law Faculty Publications
Maybe it would be best if judges left their dictionaries on the shelf. That’s the conclusion I reached after reading an Illinois court opinion last month, in which the decision turned on the dictionary definition of a commonplace word – “presence” – whose statutory meaning was in dispute. The construction eventually adopted by the court was reasonable enough. But by relying solely on a dictionary as authority, the court reflected a troubling trend nationwide. Increasingly, dictionaries are used to make the resolution of cases appear to be the product of common sense and unchallengeable authority, rather than of policy decisions …
The Evolving Right To Counsel On State Post-Conviction Review, Marc D. Falkoff
The Evolving Right To Counsel On State Post-Conviction Review, Marc D. Falkoff
College of Law Faculty Publications
Fifty years after Gideon v. Wainwright announced that lawyers at state criminal trials are constitutional necessities and not luxuries, the metes and bounds of the right to counsel are still being hashed out in the courts. In particular, the law is evolving on the right to counsel during state post-conviction review, with the U.S. Supreme Court recently acknowledging, in Martinez v. Ryan, that sometimes lawyers are necessary (albeit not constitutionally compelled) during state collateral proceedings. 132 S.Ct. 1309, 1320 (2012). But the importance of Martinez has not yet been recognized by either the Illinois courts or its legislature. Of particular …
The Oddly Perverse Consequences Of Mandatory Sentencing Enhancements, Marc D. Falkoff
The Oddly Perverse Consequences Of Mandatory Sentencing Enhancements, Marc D. Falkoff
College of Law Faculty Publications
In June, the Illinois 2nd District Appellate Court reversed the first-degree murder conviction of defendant Gareng Deng under rather unusual circumstances. Deng, who pleaded guilty to a killing in 2009 in exchange for 35 years in prison, argued that his conviction should be overturned because the sentencing judge had given him too lenient a sentence – and the appellate panel agreed. People v. Deng, 2013 IL App (2d) 111089 (2013). The counterintuitive ruling was in accord with Illinois decisional law, under which sentences falling outside of statutory maximums or minimums are deemed “void” from the outset. People v. White, 953 …
Afterthought Crimes And The Felony Murder Rule In Illinois, Marc D. Falkoff
Afterthought Crimes And The Felony Murder Rule In Illinois, Marc D. Falkoff
College of Law Faculty Publications
Last month, the Mississippi Supreme Court held that a defendant who decided to commit a robbery after killing his victim could be convicted of capital murder on the basis of a “felony-murder” theory. In other words, in order to convict the defendant of murder, the state didn’t have to prove that he intended to kill his victim or even that he caused his victim’s death as a result of a robbery attempt. Rather, the state only had to demonstrate that the robbery was committed as an “afterthought” to the killing. Batiste v. State, __ So. 3d __ (Miss., May 16, …
Recording Police Interrogations Has Worked -- And Should Be Expanded, Marc D. Falkoff
Recording Police Interrogations Has Worked -- And Should Be Expanded, Marc D. Falkoff
College of Law Faculty Publications
Legislation to expand the use of audio and video recordings of police interrogations of criminal suspects is now pending in the Illinois General Assembly. As originally conceived, the bills would modify the current statute requiring police to record interrogation of homicide suspects, further obliging them to tape interrogations of all felony suspects. The legal community – from police to prosecutors to defense lawyers – should embrace the reforms. The bills would enhance the reliability of criminal trials, deter harsh and abuse interrogations and squelch frivolous claims of abuse by criminal defendants. Moreover, the reforms will save the state money.
"Attempted Threat" Crimes And Oduwole, Marc D. Falkoff
"Attempted Threat" Crimes And Oduwole, Marc D. Falkoff
College of Law Faculty Publications
Last month, an appellate court reversed the conviction of Olutosin Oduwole — a former Southern Illinois University student and aspiring rap artist — for an “attempt to make a terroristic threat” (People v. Oduwole, __ N.E.2d __, 2013 WL 885173 (Ill. App. 5th Dist., March 6, 2013)). The case became a cause célèbre in the blogosphere when Illinois Attorney General Lisa M. Madigan announced she would appeal the decision to the Illinois Supreme Court. The notion circulating on the Internet is that Oduwole is being victimized by overzealous prosecutors who are persecuting him for no more than drafting provocative song …
Law Students Lie And Other Practical Information For First-Year Students, Meredith A.G. Stange
Law Students Lie And Other Practical Information For First-Year Students, Meredith A.G. Stange
College of Law Faculty Publications
The first thing I tell students, and the piece of information they most often remember, is something that took me nearly my entire first year of law school to figure out: Law students lie. I do not mean that all law students are duplicitous, manipulative individuals. Not at all. Law students lie about things that only law students care about, like how many pages their outlines are, when they started outlining, and how far ahead they are in their readings for class. These may sound like dumb things to lie about but, as I am sure we all recall only …
No Room Left For Doubt: New Revelation About Guantánamo, Marc D. Falkoff
No Room Left For Doubt: New Revelation About Guantánamo, Marc D. Falkoff
College of Law Faculty Publications
Recent release orders, statements by some military lawyers and judges, and the military’s own admission of detention mistakes all confirm that the only way for the Obama administration to restore our legal system’s legitimacy in the eyes of the world will be to close down Guantánamo, scrap the ill-conceived military commissions, and charge in federal court those prisoners we think committed crimes.... More revelations about the illegitimacy of the Bush administration’s war-on-terror detention system have cascaded into the public consciousness this week. This new round of disclosures and court decisions should give pause to those who have joined the fashionable …