Law Commons^™

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Chicago-Kent Law Review

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …

Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan

Chicago-Kent Law Review

The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …

No Tax For "Phantom Income": How Congress Failed To Encourage Responsible Housing Consumption With Its Recent Tax Legislation, Rue Toland

Chicago-Kent Law Review

In the midst of the recent housing crisis, Congress passed two key pieces of federal tax legislation in an attempt to stem the tide of foreclosures and prevent further economic collapse. These two bills, the Mortgage Forgiveness Debt Relief Act in 2007 and the Housing and Economic Recovery Act in 2008, both sought competing goals: lessening the harm to existing homeowners, and encouraging purchases by new homebuyers. However, neither bill adequately addressed one of the root causes of the housing crisis, namely homeowners obtaining mortgages that, for whatever reason, they could not afford. Indeed, the tax incentives these bills created …

Don't Bet On It: Casino's Contractual Duty To Stop Compulsive Gamblers From Gambling, Irina Slavina

Chicago-Kent Law Review

To address the problem of compulsive gambling, most states with commercial casinos have enacted statewide self-exclusion programs—a mechanism by which patrons petition to be physically removed from a casino if they are discovered on the premises. The casinos in the remaining states voluntarily instituted facility-based programs to assist problem gamblers in fighting their addiction.

But besides having any intended effect, these programs provided gamblers with a new ground for lawsuits—breach of contract. This note argues that neither states nor individual casinos should be liable to self-excluded patrons for breach of contract, even if they enter a casino and lose money …

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

Chicago-Kent Law Review

No abstract provided.

The Role Of Innocence Commissions: Error Discovery, Systemic Reform Or Both?, Kent Roach

Chicago-Kent Law Review

This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Criminal Cases Review Commission and the North Carolina Innocence Inquiry Commission are examined as examples of the former type of commission while Canadian public inquiries and commissions in Illinois, California and Virginia are examined as examples of the latter type of commission. Innocence commissions have had difficulties combining error correction and …

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

Separating Church And State: Transfers Of Government Land As Cures For Establishment Clause Violations, Paul Forster

Chicago-Kent Law Review

The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave desert. The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court's Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the …

Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver

Chicago-Kent Law Review

This paper deals with the issue of "reliability" in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found "innocent" of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions …

Innocence, Evidence, And The Courts, Morgan Cloud

Chicago-Kent Law Review

No abstract provided.

Free Speech & Tainted Justice: Restoring The Public's Confidence In The Judiciary In The Wake Of Republican Party Of Minnesota V. White, Gregory W. Jones

Chicago-Kent Law Review

The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to …

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and …

Private Fund Adviser Registration Act Hr-3818, Anita Krug

All Faculty Scholarship

This paper comments on the Obama administration's 2009 proposal for the regulation of hedge fund investment advisers.

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

All Faculty Scholarship

In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the …

Vol. 26, No. 4, Betty Cox, Perry A. Zirkel

The Illinois Public Employee Relations Report

Contents:

School Boards' Adverse Employment Actions Against Superintendents: An Empirical Analysis of the Case Law, by Betty Cox and Perry A. Zirkel

Recent Developments

A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho

All Faculty Scholarship

This article provides a concise history of the Doha Round negotiation, analyzes its deadlock and offers some suggestions for a successful deal. The article observes that the nearly decade long negotiational stalemate is symptomatic of the diametrically opposed beliefs on the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious of Doha’s exigency, i.e., as a “development” round, developing countries vehemently condemn the developed countries’ narrow commercial focus on the Doha Round talks. It will not be easy to untie this Gordian knot since both Worlds tend to think that no deal …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Dobbey V. Illinois Department Of Corrections: A Small Piece Of A Growing Policy Puzzle, Ashley M. Belich

Seventh Circuit Review

The First Amendment right to petition is deeply intertwined with the other liberties offered by the Bill of Rights. However, the right to petition is still rarely analyzed in the legal world. This already difficult topic has become even more muddled in the prison system. Although the Prison Litigation Reform Act sought both to help prisoners and reduce the abundance of inmate lawsuits, inmate grievance processes actually suffocate the right to petition in prisons, sometimes going so far as to create a culture that offers barely any First Amendment protection. The Seventh Circuit's decision in Dobbey v. Illinois Dept. of …

Raising The Bar: How The Seventh Circuit Nearly Struck Down The Diploma Privilege Under The Dormant Commerce Clause, Paul C. Huddle

Seventh Circuit Review

In Wiesmueller v. Kosobucki, the Seventh Circuit considered whether the Wisconsin diploma privilege violated the dormant Commerce Clause of the United States Constitution. The diploma privilege grants graduates of the University of Wisconsin Law School and Marquette University Law School admission to the Wisconsin bar without examination. This privilege does not extend to graduates of other ABA-accredited law schools who desire to practice in Wisconsin. Because the issue was dismissed prematurely in the lower court, the Seventh Circuit declined to decide the issue. Nonetheless, the Seventh Circuit suggested that the diploma privilege arbitrarily discriminated against interstate commerce. This Comment …

Should They Stay Or Should They Go: Applying The Forum Non Conveniens Doctrine To Foreign Plaintiffs Injured Abroad In Abad V. Bayer Corporation, Leah B. Moon

Seventh Circuit Review

To prevent plaintiffs from harassing the defendant or engaging in forum-shopping, the common law doctrine of forum non conveniens permits trial courts to dismiss a foreign plaintiff's suit, over which it would normally have jurisdiction, if both the parties' convenience and the ends of justice are best served by dismissal. Supreme Court precedent requires courts to weigh a number of private and public interest factors, and gives foreign plaintiffs less deference in their choice of forum than a domestic plaintiff. Applying this test in Abad v. Bayer Corporation, the Seventh Circuit upheld the dismissal of two cases involving Argentinean …

True To The Fable?: Examining The Appropriate Reach Of Cat's Paw Liability, Emily M. Kepner

Seventh Circuit Review

In its recent decision in Staub v. Proctor Hospital, the Seventh Circuit clarified its approach to the colorfully named "cat's paw" theory of employment discrimination. The cat's paw doctrine holds employers vicariously liable when an employee involved in the decisionmaking process, other than the non-biased formal decisionmaker, possessed discriminatory intent. Currently, the circuits disagree about how much control the biased employee must possess over the decisionmaker to impose liability on the employer. In Staub, the Seventh Circuit held that liability should be imposed only when the biased employee possessed "singular influence" over the formal decisionmaker, aligning the court …

Finding Intent Without Mens Rea: A Modified Categorical Approach To Sentencing Under The United States Sentencing Guidelines, Amanda J. Schackart

Seventh Circuit Review

This Comment considers whether reckless homicide should be considered a "crime of violence" under the United States Sentencing Guidelines. The Guidelines provide for a sentence enhancement for those defendants who are labeled as career offenders. Career offenders are those individuals who have at least three convictions for either drug offenses or "crimes of violence." In United States v. Begay, the United States Supreme Court held that in order for a predicate offense to be a crime of violence, the crime must be "purposeful, aggressive, and violent." The Seventh Circuit recently held in United States v. Woods that reckless homicide …

Prisoners And Public Employees: Bridges To A New Future In Prisoners' Free Speech Retaliation Claims, Matthew D. Rose

Seventh Circuit Review

In Bridges v. Gilbert, the Seventh Circuit considered the question of whether prisoners' free speech, like the free speech of public employees, must involve a matter of public concern to receive First Amendment protection against governmental retaliation. Instead of holding that a prisoner's speech must involve a matter of public concern, the Seventh Circuit drew on the Supreme Court's unexamined and indeterminate test in Pell v. Procunier to hold that prisoners retained those free speech rights not inconsistent with their status as a prisoner or the legitimate penological objectives of the corrections system. This Comment traces the evolution of …

The Seventh Circuit Giveth, And The District Of Columbia Circuit Taketh Away: The National Labor Relations Board's Authority To Act Under Section 3(B) Of The National Labor Relations Act, Tyler T. Murphy

Seventh Circuit Review

On May 1, 2009, the Seventh Circuit and the D.C. Circuit issued decisions interpreting Section 3(b) of the National Labor Relations Act. In New Process Steel, LP v. NLRB, the Seventh Circuit interpreted Section 3(b) as allowing the National Labor Relations Board to issue decisions through a two-member panel. However, the D.C. Circuit declared the same two-member panel unlawful in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB. The Supreme Court will now resolve the issue, having granted certiorari to New Process Steel. This Note argues that Section 3(b)'s plain language and legislative history fail to …

The Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro

All Faculty Scholarship

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices’ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even …

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

Financial Regulatory Reform And Private Funds, Anita Krug

All Faculty Scholarship

This white paper comments on the Obama administration's June 2009 proposal for the regulation of hedge fund investment advisers.

All The Wild Possibilities: Technology That Attacks Barriers To Access To Justice, Ronald W. Staudt

All Faculty Scholarship

Predicting how technology will affect the future of the legal profession is difficult and unreliable work. I have made my share of such predictions in the past thirty years, including foretelling the death of the paper casebook in law schools and vast improvements in law practice that would be triggered by computers and document assembly software. Neither of these two prophesies has yet been fulfilled. Yet a real success story has emerged based in part on my persistent optimism that technology can improve the delivery of legal services. A2J Author, a modest software tool that allows lawyers to build guided …

Vol. 26, No. 3, J. Stuart Garbutt

The Illinois Public Employee Relations Report

Contents:

Recent and Potentially Forthcoming Developments in Federal Regulation of the Workplace, J. Stuart Garbutt

Recent Developments