Digital Commons Network^™

How We Got Where We Are: A Look At Informed Consent In Colorado--Past, Present, And Future, R. Jason Richards

Northern Illinois University Law Review

This article examines the historical development of the doctrine of informed consent in this country, paying specific attention to its evolution in Colorado. In doing so, the author examines the two theories of patient disclosure that have emerged over time-the "professional standard" and the "reasonable patient standard." The article analyzes the legal and practical justifications of each approach in light of the contemporary doctor/patient relationship and concludes that the best way to protect patient autonomy rests with in- formed decision-making, which can only be accomplished by adopting the reasonable patient standard of disclosure in Colorado.

Article I Courts, Substantive Rights, And Remedies For Government Misconduct, David A. Case

Northern Illinois University Law Review

This article argues that Article I courts can use equitable principles to provide individuals who have been victimized by corrupt behavior of government attorneys with a remedy. Article III courts have struggled to define the powers of Article I courts in a way that does not do violence to the petition clause, the appropriations clause, or the takings clause, sometimes concluding that petitioners were entitled to no relief when the government had violated some right of the petitioners. After tracing the development of claims against the government in general, and in the extant Article I courts, the article employs Professors …

Edict V. Dicta: Rolling Back Rights In The Second Circuit Under The Clearly Established Clause Of The Aedpa Amended Habeas Statute, Aron E. Goldschneider

Northern Illinois University Law Review

This article, through a close critical analysis of two recent habeas corpus decisions by the Second Circuit Court of Appeals, shows how appellate courts, under § 2254 of the AEDPA amended habeas statute, are methodically erasing venerable and well-considered federal habeas precedents that formerly protected state defendants' rights. In the process of examining these Second Circuit decisions' impact on two discrete areas of criminal trial procedure, the article exposes the way in which habeas review under the AEDPA too often becomes a formalistic yet un-disciplined exercise that turns away from the crucial question that should be at the heart of …

Brave New School: A Constitutional Argument Against State-Mandated Mental Health Assessments In Public Schools, Jennifer H. Gelman

Northern Illinois University Law Review

This comment examines the constitutionality of emotional health assessments in public schools. Despite the Supreme Court's recognition nearly a century ago that parents have a right to control the education of their children, American courts have grown increasingly hostile to parental interests in conflicts between parent and school. The author explores the possibility that the Court's reaffirmation of parental rights in Troxel v. Granville (2003) could be invoked in certain cases to reverse that trend. It is argued, in particular, that parental objections to school involvement in emotional health determinations ought to merit some form of heightened scrutiny.

Vol. 26, No. 1, Fall 2005: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

The Federal Common Law Of Foreign Relations, Joel M.L. Huotari

Northern Illinois University Law Review

This comment asserts that mere foreign policy implications should not be enough to establish federal jurisdiction over the litigation of an otherwise exclusively state law claim, as some circuits have allowed. The Second, Fifth and Eleventh Circuits have allowed such state law claims to be removed to the federal courts. The Ninth Circuit, however, rejects the proposal that the federal courts are somehow better equipped to hear cases which implicate foreign policy concerns. Questions of foreign policy are generally not the subject matter of the judicial branch, but of the legislative and executive branches. Members of Congress and of the …

Dspace, Institutional Repositories And The Open Access Movement: Why Should You Care?, Carol A. Parker

Faculty Scholarship

The amount of digital scholarly output grows daily, yet only a small fraction of legal scholarly communication is published in traditional venues such as law reviews and journals. Some of this digital scholarly communication makes it to the Web and becomes a resource often referred to as "gray literature," but this can be a haphazard process at best. The UNM School of Law Library employs DSpace, an open source digital institutional repository, to enable the Law faculty to collect, preserve, index, and distribute their digital work, as well as to provide a community for peer review of works in progress. …

Protecting The Parent-Child Relationship: The Need For Illinois Courts To Extend Standing To Non-Biological Parents In Regard To Visitation Proceedings, Desiree Sierens

Northern Illinois University Law Review

Each year, children in Illinois are denied the opportunity to visit a "parent" because the children's families do not fit into traditionally defined family units. Under Illinois law, one "parent" in these non-traditional families lacks standing to petition for custody and visitation. While Illinois courts have a tradition of extending rights to common law parents, current courts have declined to follow previous rulings when asked to extend standing to the same-sex partner of the biological parent, even in cases where the couple, together, agreed to have the child. This comment will argue that maintaining relationships between a non-biological parent and …

Determining The Undeterminable: The Best Interest Of The Child Standard As An Imperfect But Necessary Guidepost To Determine Child Custody, Steven N. Peskind

Northern Illinois University Law Review

Since the 1960s, our nation's courts have almost universally relied on a legal standard known as the "best interest of the child" in order to resolve contested issues involving child custody. Critics of the standard conclude that, due to the complexities of defining what will serve a child's best interests, the standard is at best not helpful, and is perhaps even useless. Critics also charge that the standard is indeterminate, and depends too heavily on the subjective values and life experience of the individual fact finder--the trial judge. In this article, Steven Peskind will review the history of standards used …

Domestic Violence And The Danger Of Joint Custody Presumptions, Judith G. Greenberg

Northern Illinois University Law Review

This article points out that the current trend towards joint custody as the preference or presumption in divorces can create some unwanted side-effects. Specifically, joint custody is dangerous for victims of spousal abuse because it allows, and sometimes even facilitates, the continuation of patterns of abuse. Although many jurisdictions that apply a joint custody presumption attempt to protect victims of domestic violence, neither of the two usual approaches is successful in protecting the victims and their children. As a result, the author makes two recommendations. First, statutes should never create a presumption in favor of joint custody. Second, courts should …

Relocation Custody Disputes - A Binuclear Family-Centered Three-Stage Solution, Robert E. Oliphant

Northern Illinois University Law Review

This article argues that the best method for courts to adopt during relocation custody disputes is a binuclear, family-centered process. A binuclear family is defined as a large, interconnected family, with one household headed by the ex-wife and the other by the ex-husband, with the child being a member of both. The author contends that the current methods, which include the endangerment standard and the "new family" theory, are both inadequate to deal with a relocation custody dispute. Specifically, the author discusses a proposed three-step process for dealing with a relocation custody dispute. Step one involves the creation of a …

The American Law Institute Principles Of Family Dissolution, The Approximation Rule And Shared-Parenting, Marygold S. Melli

Northern Illinois University Law Review

This article discusses the ALl Principles of Family Dissolution which proposes a default rule to determine child custody when parents cannot agree. That rule, known as the Approximation Rule, requires the court to allocate child custody so that the amount of time that the child spends with each parent approximates the proportion of time each parent spent in child care during the marriage. This article explains the background for the choice of the rule and faults the ALl for not explicitly recognizing that the rule may in effect be a proposal for shared parenting.

Applying Intent-Based Parentage Principles To Nonlegal Lesbian Coparents, Melanie B. Jacobs

Northern Illinois University Law Review

With increasing frequency, courts are being asked to determine the parental rights of lesbian partners; some of these partners have no biological connection to their child(ren) while others have donated genetic material. Current parentage laws are often inadequate to resolve these disputes and even when they are available, courts are often reluctant to apply them and depart from the traditional family law paradigm of one mother/one father. In this article, the author argues that courts should embrace the doctrine of intentional parenthood to legalize the rights of nonlegal lesbian partners, with two caveats: first, courts should not apply intent-based principles …

Child Support Obligations That Result From Male Sexual Victimization: An Examination Of The Requirement Of Support, Dana Johnson

Northern Illinois University Law Review

This comment examines the consideration of male sexual victimization in child support judgments. Specifically, this comment addresses situations in which fatherhood resulted from male sexual victimization. State courts have rejected the arguments that young boys have made in an attempt to avoid the financial consequences of their victimization. While these arguments have all failed, this comment argues that state courts have not adequately considered male sexual victimization in this context. These courts have clung tightly to child support policies, but have failed to protect victimized boys by adhering to gender stereotypes about boys and sex. With more education and a …

Vol. 25, No. 3, Summer 2005: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

Have Kids, Might Travel: The Need For A New Roadmap In Illinois Relocation Cases, Lance Cagle

Northern Illinois University Law Review

The issue of child custody relocation continues to be a source of controversy and contention nationwide, as state legislatures and courts have struggled to determine the difficult question of whether, and under what circumstances, a child's residential parent may be permitted to relocate with the child across state lines. In Illinois, the issue of relocation has proven particularly troublesome, as there are no statutory standards to guide courts in determining when removal is in the best interests of the child and appellate decisions have yielded inconsistent and often puzzling results. This article addresses the issue of custody relocation in Illinois. …

Vol. 25, No. 2, Spring 2005: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

Due Process And The Ncaa: Are Innocent Student-Athletes Afforded Adequate Protection From Improper Sanctions? A Call For Change In The Ncaa Enforcement Procedures, Mathew M. Keegan

Northern Illinois University Law Review

This note discusses the National Collegiate Athletic Association's (NCAA) current penalty enforcement procedures and whether student-athletes are afforded adequate protection from penalties for violations not committed by them. It examines the line of cases discussing whether the NCAA is a state actor when imposing sanctions upon member institutions. The 1988 United States Supreme Court case of NCAA v. Tarkanian held the NCAA not to be a state actor when sanctioning member institutions, thus depriving coaches and student-athletes of the opportunity for court redress for a possible liberty or property deprivation. Specifically, this note asserts that with respect to the 2003 …

Constructing Reality: Social Science And Race Cases, Beverly I. Moran

Northern Illinois University Law Review

"Constructing Reality: Social Science and Race Cases" was the keynote address for the 2004 Northern Illinois University Law Review Symposium on the future of affirmative action after the Michigan affirmative action case known as Grutter v. Bollinger. The essay looks at the use of social science in the amicus briefs before the Supreme Court in that case. The author points out that social sciences were used in almost all the amicus briefs to either attack or defend affirmative action. This insight leads the author to argue that, because judges bring their understandings of the world into their decision making, lawyers …

Congressional Enforcement Of Affirmative Democracy Through Section 2 Of The Voting Rights Act, Michael J. Pitts

Northern Illinois University Law Review

One might instinctively think, as suggested by several commentators, that section 2 of the Voting Rights Act, a race-based remedy imposed by Congress on state and local governments, has a good chance of being declared unconstitutional by the Supreme Court. This is because, in recent years, the Court has shown a general hostility to race-based remedies and to laws that impose federal requirements on state and local governments. The author, however, identifies three core values to demonstrate that section 2 remains clearly constitutional even in light of these trends. The first is that racial discrimination in voting is a context …

The Inevitable Reevaluation Of Best V. Taylor In Light Of Illinois' Health Care Crisis, Carolyn Victoria J. Lees

Northern Illinois University Law Review

In the 1997 Illinois Supreme Court decision of Best v. Taylor Machine Works, the court held that caps on non-compensatory damages violated the Illinois Constitution. However, in light of the current health care insurance crisis, the court may have to reconsider this issue. This article re-crafts the decision, ultimately arguing that caps are constitutional. The intention of the article is three-fold. First, the article attempts to bring greater attention to a growing problem that requires immediate addressing, while advocating a direct and administratively simple solution. Second, the article seeks to provide a historical overview of caps on non-compensatory damages relating …

Open Access Bibliography: Liberating Scholarly Literature With E-Prints And Open Access Journals, Charles W. Bailey Jr.

Copyright, Fair Use, Scholarly Communication, etc.

Scope of the Bibliography

The Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals presents over 1,300 selected English-language books, conference papers (including some digital video presentations), debates, editorials, e-prints, journal and magazine articles, news articles, technical reports, and other printed and electronic sources that are useful in understanding the open access movement’s efforts to provide free access to and unfettered use of scholarly literature. Most sources have been published between 1999 and August 31, 2004; however, a limited number of key sources published prior to 1999 are also included. Where possible, links are provided to sources …

Towards A Continuum Of Scholarship: The Eventual Collapse Of The Distinction Between Grey And Non-Grey Literature, Marcus A. Banks

Copyright, Fair Use, Scholarly Communication, etc.

Abstract (from University of Arizona Campus Repository)

This paper argues that the distinction between grey and non-grey (or white) literature will become less relevant over time, as online discovery options proliferate. In the meantime, the political success of the open access publishing movement has valuable lessons for proponents of increasing access to grey literature.