Law Commons^™

Intraparty Conflict And The Separation Of Powers, Gregory A. Elinson

College of Law Faculty Publications

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that contrary to the Madisonian vision competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

Norm-Breakers, Rights-Makers: Legislative Norms, Democratization, And The Fight For Civil Rights, Gregory A. Elinson

College of Law Faculty Publications

Norms, the conventional wisdom goes, help to keep our democracy stable. And breaking norms, scholars believe, puts democracy at risk of backsliding. This Article challenges that consensus. The original historical evidence marshaled here shows that norm-breaking by civil rights reformers in Congress was critical to jumpstarting the democratization of the United States in the mid-twentieth century, ensuring passage of both the Civil Rights Act of 1964 and Voting Rights Act of 1965. Norm-breaking, the Article makes clear, is sometimes essential to democratic reform.

Leveraging these detailed case studies, the Article explains why. In preserving the status quo, norms protect existing …

The Future Of Employee Job Security In Illinois, Daniel S. Alcorn

Northern Illinois University Law Review

The at-will employment doctrine is more than a century and a half old. Illinois has long subscribed to the at-will employment doctrine, but the doctrine is dying a slow death. The doctrine has positive and negative aspects, but the lack of employee job security will prove to be a fatal flaw. The doctrine is not so well founded in reason or legal history to save it. Employee job security is becoming increasingly desirable and important. The legislatures and courts are making significant inroads on the doctrine to protect employee job security. A bill to abrogate the doctrine and require cause …

Rights Without Remedies: How The Illinois Post-Conviction Hearing Act’S Standing Requirement Has Failed Defendants, Nate Nieman

Northern Illinois University Law Review

The Illinois Post-Conviction Act is a procedural mechanism that allows a criminal defendant to assert that his federal or state constitutional rights were substantially violated during trial or at sentencing. The passage of the Act expanded a defendant’s ability to challenge his conviction and sentences collaterally, where before the Act, he had only been able to raise these challenges on direct appeal. However, the Act’s strict standing requirement precludes defendants from relief once they have completed their sentence, ignoring the fact that many important, life-altering civil consequences resulting from criminal convictions occur after a sentence has concluded.

This Article argues …

Illinois’S Marijuana Madness: A Protectionist Scheme Of An Illegal Market In The Shadow Of The Constitution, Alec C. Moehn

Northern Illinois University Law Review

From prohibition to legalization, Marijuana has had a storied legal history in the United States, but its story is not quite over. A new gray area is coming to the forefront of the legal field: Marijuana is illegal federally but legal in many states. This Note discusses how some states, including Illinois, are operating in that gray area to better their political and economic goals, but the Constitution places a barrier to do so with the Dormant Commerce Clause. States are not free to discriminate against other states or out-of-state economic actors, and Illinois does just that with the Cannabis …

A Right To Fly: Navigating The Air Carrier Access Act And The Americans With Disabilities Act Following Alexander V. Sandoval, William Belles

Northern Illinois University Law Review

There are approximately 54 million disabled individuals in the United States. Those 54 million American citizens live their day to day lives differently than the average person, facing difficulties most others cannot comprehend. While legislation has come a long way in recent decades, one area that has remained stagnant is how we treat disabilities on airplanes. Despite legislation remaining relatively stagnant, judicial opinions have not. In fact, many United States Circuit Courts have determined that the Air Carrier Access Act, which provides limited protections on airplanes, does not confer a private cause of action for violations. As a result, the …

In The Room Where The Constitution Happens, Lorianne Updike Toler

College of Law Faculty Publications

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process. In making this comparative case--one which has important implications for modern constitution-writing--scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes between …

On Bringing Alternative Methods To Legal Research Instruction, Tanya M. Johnson

Northern Illinois University Law Review

Legal research is typically taught in a predictable, traditional way, but this doctrinal approach does not provide the skills and techniques needed for research in support of social justice efforts. This essay discusses a legal research course that I teach called Research for Social Justice, which incorporates critical and alternative methodologies that are not usually taught in legal research classes. After describing the content of the course, I focus on explaining what alternative legal research would entail, including a discussion of some alternative methods and strategies that I teach in my course with the goal of introducing students to a …

Notes For A New Legal Research Pedagogy, Nicholas Mignanelli

Northern Illinois University Law Review

Do societal power structures shape the organization of legal information? Do they embed biases in legal research tools? If so, how can the insights of critical legal theory assist us in contending with this phenome-non? An entire body of scholarly literature using the lenses of critical legal studies, feminist legal theory, and Critical Race Theory to examine legal information and the legal research process has grown up around answering these questions. However, the theories, methods, and strategies proffered by the scholars writing in this area are rarely taught in the legal research classroom.

I begin this Essay with a discussion …

Jane Crow Constitutionalism, Evan D. Bernick

Northern Illinois University Law Review

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

Integration & Transformation: Incorporating Critical Information And Literacy And Critical Legal Research Into Advanced Legal Research Instruction, Courtney Selby

Northern Illinois University Law Review

Today’s law students exist in an information ecosystem where access to information is plentiful. Between the open web and the proliferation of databases offering countless research resources, retrieving potentially relevant search results is relatively easy. The struggle for our students is filtering through seemingly endless search results to find the best resources for the legal problem at hand. For many of us, the summer of 2020 was a watershed moment, not because of the pandemic, but because of the brutal murder of George Floyd. Make no mistake, there was a genuine need for CIL and CLR in our legal research …

Comment: Instilling Ordered Procedure In Assessing Motions For Reduced Sentences Under Section 404 Of The First Step Act, Michael C. Vega

Northern Illinois University Law Review

This Comment discusses the lack of ordered procedure in assessing motions brought pursuant to § 404 of the First Step Act of 2018. For nearly a quarter century, federal cocaine sentencing subjected crack-cocaine offenses dealing in one-hundredth the quantity of drug to the same statutory penalty as powder-cocaine offenses. This disparate treatment of drug offenses impacted primarily African Americans. The Fair Sentencing Act of 2010 reduced the disparity but applied only prospectively. Section 404 of the First Step Act made certain provisions of the Fair Sentencing Act retroactive. In the ensuing years, the federal courts have disagreed on the precise …

Are Third Parties Creating A Loophole For Police Investigations?, Alexandria N. Short

Northern Illinois Law Review Supplement

This article discusses the current case law and statutory law related to the privacy of information collected by third parties. At times, we see the private sector and law enforcement working together to solve crimes. However, that may not always be a good thing. This article offers a solution to these problems of uncertainty by suggesting a uniform code to regulate the private sector, or, in the alternative, a change to the Fourth Amendment that encompasses a more modern interpretation of the information that law enforcement should have access to.

Renegotiating The Colorado River Compact: How A One Size Fits All Approach Has Led To A State Centric Future, And How The Commerce Clause Can Solve It, Erica Porvaznik

Northern Illinois University Law Review

While equitable division of water supplied by the Colorado River has been dictated by the Colorado River Compact for over one hundred years, this agreement has only served to create an inequal, power dynamic amongst all the states and parties to the Compact.

The current provisions controlling the apportionment and usage of the water are set to expire in 2026. Therefore, there is a path forward for the water to be divided in a new way, specifically, by Congress. I argue that Congress should assume authority over the Colorado River and apportion the water under their Commerce Clause power, as …

Comment: The Unjust Side Of Civil Asset Forfeiture In Illinois: Innocent Victims And Corrupted Incentives, Sarah Farwick

Northern Illinois University Law Review

Under the broad scope of modern civil asset forfeiture, law enforcement agencies routinely deprive citizens of their property without ever formally charging them with a crime. This system diminishes the ideal values of American justice, yet the Supreme Court has long held that civil asset forfeiture is constitutional, leaving prospects of judicial reform unlikely. Therefore, it is crucial that individual states take action to protect their citizens by abolishing the use of civil asset forfeiture. In 2017, the Illinois General Assembly attempted to reform its civil asset forfeiture system, but upon close analysis and application of the statute, it is …

Comment: Copyright Registration: Fourth Estate Implications For Photographers In The Modern World, Izabella Kanoza

Northern Illinois University Law Review

In 2019, the Supreme Court has settled a long-standing split issue among the Circuit Courts. The issue revolved around the interpretation of the word “registration” with the Copyright Office in order for a copyright owner to be able to initiate a copyright infringement lawsuit. However, the now settled precedent has presented challenges to the ever-evolving internet world and those who use it to create, advertise, and share their digital content. Digital photographers, specifically, have found this registration requirement inefficient when it comes to sharing their work on social media platforms, such as Instagram or Facebook, where copyright infringement in the …

The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo

College of Law Faculty Publications

Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of all cases referencing the Constitutional Convention provides evidence that history can constrain judicial interpretation of the Constitution.

As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes …

The Prospect And Perils Of Climate Preemption For Public Health, Sarah Fox

College of Law Faculty Publications

Climate change is disrupting many communities in the United States and around the world. Climate events like heat waves, hurricanes, drought, fire, and flooding will become much more frequent, and with them will come the need for robust health care responses. Given the widespread and boundary-crossing nature of the problem, an ideal response would possibly originate at the federal or state level. As illustrated by the COVID-19 pandemic, however, there is little guarantee that such a response will be forthcoming. Recent foreclosures of federal options for handling climate change make such a response even less likely. Instead, it seems likely …

Brief For Lorianne Updike Toler As Amicus Curiae Supporting Neither Party, Gorge Design Group, Llc V. Xuansheng, Lorianne Updike Toler, Lawrence A. Stein

College of Law Faculty Publications

The Patent and Copyright Clause in the Constitution was designed to stimulate the economy by promoting “the Progress of Science and useful Arts,” and was also limited to that purpose. Insofar as the economy was not stimulated and promoted in the United States, the Clause had a limit. Thus the Patent and Copyright Clause was not thought to be absolute by its Framers, and was bounded geographically, temporally, and to those inventions that were useful. Under the Fifth Amendment, both the Takings and Due Process Clauses protecting property derived from the Magna Carta of 1215. Since this time, the Takings …

Police Reform Through Section 1983, Adam J. Smith

Northern Illinois University Law Review

For decades, members of the Chicago Police Department (CPD) engaged in a protracted campaign of corruption, terror, and violence against Black and brown Chicagoans. Intermittent efforts to reform or otherwise rein in the CPD invariably fell short. In late 2014, a CPD officer murdered a 17-year-old Chicagoan, Laquan McDonald. CPD officials and city leaders attempted to whitewash the killing as a justified use of deadly force, but—thanks to the work of local organizers and a national pressure campaign—McDonald’s death instead led to a yearlong investigation by the federal Department of Justice (DOJ). Ordinarily, such an investigation would have resulted in …

Beyond #Freebritney: A Legal Analysis Of The Conservatorship System In The United States, Ashleigh M. Zurek

Northern Illinois University Law Review

In this article the author will explore the state of conservatorships in the United States and how, too often, individuals with disabilities are abused and taken advantage of in this structure. The author will discuss particular areas of conservatorship abuse, including: financial abuse, physical abuse, exploitation, and death. The author will then proceed to discuss potential solutions to curb conservatorship abuse and how best to improve the conservatorship system in the United States. Particular solutions discussed include: special needs trusts, federal legislation (past, current, and future), and supported decision-making.

The New Rule To Deter Slapps, Robert A. Kudlicki Iii

Northern Illinois Law Review Supplement

A Strategic Lawsuit Against Public Participation (SLAPP) serves to intimidate and chill the speech of defendants who are engaged in First Amendment protected forms of speech and press. A SLAPP is not filed with the intention of presenting a legitimate claim against a defendant; rather, it serves only to silence. Defendants face significant litigation costs during a SLAPP; thus, they become fearful of speaking out and criticizing the plaintiff again in the future. While some jurisdictions have protections against SLAPP suits, others have no protection or only limited forms of protection from SLAPP suits. This article proposes creating a new …

Contra Naturam, F. H. Buckley

Northern Illinois University Law Review

There’s a revival of interest in natural law, but while its adherents claim to hold the philosophic high ground, they’ve failed to recognize the doctrine’s weaknesses. Classical natural law holds that our moral requirements are rooted in the natural world and the instincts and preferences that form human nature. However, this runs afoul of the logical distinction between empirical and normative statements; and while other natural lawyers say they’ve avoided this problem, their “New Natural Law” implausibly asserts that rational self-interest will lead us to the good. It won’t, because rational self-interest can’t explain the duties we owe other people. …

What Web3 Means For Lawyers' Ethical Duties, Heidi L. Frostestad

College of Law Faculty Publications

Evolving technologies are one of the greatest issues of our time and continue to affect legal practice at a rapid rate, exponentially changing the structure of law firms and traditional practice.

Applying Universal Design In The Legal Academy, Matthew L. Timko

College of Law Faculty Publications

Too often barriers to access in the form of physical, technological, and cognitive environments play a large role in keeping many people out of law school. While federal and state laws address these barriers, universal design provides the clearest policy change for law schools to remedy these issues.

Irrationalities In Legal Parentage: Gender Identity And Beyond, Jeffrey A. Parness

College of Law Faculty Publications

This Article is the first to outline the irrationalities in many new and old parentage laws. Irrationalities often arise when the laws employ gendered terms like mother and father, husband and wife, man and woman, and male and female. These terms require a parent to be gender identified by the state, even when such an identity clashes with the parent’s own gender identification. More importantly, these gendered terms frequently clash with public policies underlying parentage laws, new and old, that are not dependent upon any form of gender identity.

Beyond gender identity, irrationalities also arise when there are distinctions without …

Presuit Lawyer Information Duties Relevant To Civil Litigation, Jeffrey A. Parness

College of Law Faculty Publications

In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties.

Galactic Accessibility: An Introduction To Interplanetary Human Rights Law Through Crip Legal Theory, Aj Link

Northern Illinois University Law Review

The possibilities within the realm of outer space and future space exploration have always been limitless. There has been renewed interest in space over the last decade, largely fueled by the private commercial space sector. As more and more people become interested in space and connected to the space industry, we must take care not to repeat the mistakes of the distant and recent past. Space should be accessible to all who wish to travel amongst the stars. We should not discriminate or bar individuals from going to space based on race, gender, gender identity or expression, nationality, religion, disability, …

Government Ethics And Sustainable Space Exploration, Adam F. Greenstone

Northern Illinois University Law Review

This Article is about how government ethics supports humanity’s sustained exploration of outer space. Connotations of space sustainability include addressing all bases so that space activity develops to maximize human benefit. NASA’s ethics practice advances key mission objectives by supporting workforce talent acquisition, talent transfer to other organizations supporting national space objectives, disseminating public information on NASA’s activities, and advancing space commerce development. Following the earlier concurrent development of US government ethics law and human spaceflight, the United Nations Convention Against Corruption (UNCAC) has advanced a global anti-corruption framework of which government ethics is part. The significance of government ethics …

Working In Space: The Final Frontier Of Remote Work, Alyson Clare Decker

Northern Illinois University Law Review

Due to the COVID-19 pandemic, virtual workplaces have become much more common. But while advancements in technology have made remote work more accessible for many employees, jurisdictional confusion and varying state-specific employment regulations have made it extremely difficult for employers to switch from traditional in-person office settings to work-from-anywhere workplaces. In addition, taxation and mandatory workers’ compensation insurance requirements mean that employers often need to be registered to do business in any state they have employees in, making a truly remote workforce somewhat of a misnomer. However, as difficult as it might be for terrestrial employers to navigate our patchwork …