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Full-Text Articles in Law

Jane Crow Constitutionalism, Evan D. Bernick Jun 2023

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 …


Comment: The Unjust Side Of Civil Asset Forfeiture In Illinois: Innocent Victims And Corrupted Incentives, Sarah Farwick May 2023

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 …


The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo Apr 2023

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 Demise Of The Bivens Remedy Is Rendering Enforcement Of Federal Constitutional Rights Inequitable But Congress Can Fix It, Henry Rose May 2022

The Demise Of The Bivens Remedy Is Rendering Enforcement Of Federal Constitutional Rights Inequitable But Congress Can Fix It, Henry Rose

Northern Illinois University Law Review

A federal statute allows a person whose federal constitutional rights are violated by state actors to sue for damages. There is no analogous federal statute that allows a person whose constitutional rights are violated by federal actors to sue for damages. In 1971, the United States Supreme Court allowed a suit for damages against federal law enforcement officials who allegedly violated Fourth Amendment rights to proceed directly under the Constitution, creating the Bivens remedy. Beginning in 1983, the Supreme Court reversed course and issued ten consecutive decisions in which it denied a Bivens remedy because no federal statute authorizes suits …


Abortion And Safe Haven Laws, Jeffrey A. Parness Jan 2022

Abortion And Safe Haven Laws, Jeffrey A. Parness

College of Law Faculty Publications

Notwithstanding the assertions of the State of Mississippi, of one amicus, and of Justice Amy Coney Barrett in Dobbs v. Jackson Women’s Health Organization, abortion laws and safe haven laws are oil and vinegar. Not only do they not mix, but safe haven laws in some ways support the continuing validity of the balance on individual privacy interests and legitimate governmental interests struck in the Roe v. Wade decision on abortion. Both abortion availability laws and safe haven laws advance the interests of women who choose not to parent children within their existing family structures. But safe haven laws, …


The Roberts Court And Lost Esi, Jeffrey A. Parness Jan 2022

The Roberts Court And Lost Esi, Jeffrey A. Parness

College of Law Faculty Publications

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To …


Privacy Qui Tam, Peter Ormerod Jan 2022

Privacy Qui Tam, Peter Ormerod

College of Law Faculty Publications

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …


Unconstitutional Parenthood, Jeffrey A. Parness Oct 2020

Unconstitutional Parenthood, Jeffrey A. Parness

College of Law Faculty Publications

A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for legal parenthood relevant to child custody, child visitation, and allocation of parental responsibility. These articles appear under such titles as Constitution of Parenthood, Constitutional Parenthood, Constitutional Parentage, and The Constitutionalization of Fatherhood. They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new forms of childcare parenthood. And they follow new parentage law initiatives by state legislatures and courts. This Article goes beyond these …


Unilateral Executive Power Enshrined In Law: The Zivotofsky Court Stays The Course, Kimberley L. Fletcher Apr 2017

Unilateral Executive Power Enshrined In Law: The Zivotofsky Court Stays The Course, Kimberley L. Fletcher

Northern Illinois University Law Review

Zivotofsky v. Kerry (2015) is the most recent challenge to presidential prerogatives, and while the Supreme Court addresses the erroneous mistake espoused by Justice Sutherland in 1936, the Court ultimately fails to harness the unbridled powers of the Executive in the area of foreign affairs. The Court establishes a new standard for presidential ascendancy, which leaves the imperial president largely intact. This Article shows that a dynamic and fluid institutional relationship exists between the executive branch and the Court; the Court affects constitutional and political development by taking a leading role in interpreting presidential decision-making in the area of foreign …


The Law Of Citations And Seriatim Opinions: Were The Ancient Romans And The Early Supreme Court On The Right Track?, Joshua M. Austin Nov 2010

The Law Of Citations And Seriatim Opinions: Were The Ancient Romans And The Early Supreme Court On The Right Track?, Joshua M. Austin

Northern Illinois University Law Review

This article explores the oft forgotten and somewhat misunderstood ancient Roman law methodology known as the Lex Citandi, or Law of Citations. The Law of Citations was a relatively simple theory in which authority was given to the writings of five key jurists from the classical period of Roman law, and the majority won the day. Thus, in a way, the method of separate opinions was born. It was a theory revisited by our Supreme Court in its early days through seriatim, or separate, opinions; and perhaps still seen today in the modern day Supreme Court's concurrences and dissents. This …


Irreconcilable Principles: Law, Politics, And The Illinois Supreme Court, Jackson Williams May 1998

Irreconcilable Principles: Law, Politics, And The Illinois Supreme Court, Jackson Williams

Northern Illinois University Law Review

This article attempts to evaluate the recent criticisms of the political structure of the Illinois Supreme Court. The author examines the electoral and legal systems that usually come into potential conflicts. The goal of the article is to illustrate some important issues in the environment free from the sensationalism of press accounts and the emotionalism of political attacks, and provoke a sensible debate among the State's bar, legislators, and public about how the perception of a "political" court impacts on Illinois' legal system.


The Supreme Court's Use Of Per Curiam Dispositions: The Connection To Oral Argument, Stephen L. Wasby, Steven Peterson, James Shubert, Glendon Shubert Nov 1992

The Supreme Court's Use Of Per Curiam Dispositions: The Connection To Oral Argument, Stephen L. Wasby, Steven Peterson, James Shubert, Glendon Shubert

Northern Illinois University Law Review

This study is an empirical examination of a set of the Supreme Court's per curiam rulings issued after oral argument between 1969 and 1981. The authors use transcripts of Supreme Court oral argument and the Court's opinions to untangle relationships between oral argument and dispositions, particularly when the Court does not reach the merits. The authors note that oral argument clarifies issues and helps the justices narrow them. The Court's comments in its per curiam dispositions indicate that oral argument is relevant for the Court's dispositions and at times it has been more determinative of outcomes, for example, when counsel's …


Waiver Of Constitutional Issues In Criminal Cases: Confusion In The Illinois Supreme Court, Timothy P. O'Neill Nov 1990

Waiver Of Constitutional Issues In Criminal Cases: Confusion In The Illinois Supreme Court, Timothy P. O'Neill

Northern Illinois University Law Review

For years, a serious problem has faced an Illinois criminal defendant who challenged the constitutionality of the statute supporting his conviction for the first time on appeal. Two contradictory lines of Illinois Supreme Court authority came to opposite conclusions on whether the issue had been waived. This article examines the failure of the Illinois Supreme Court squarely to confront this issue.


Constitutional Cultures: The Mentality And Consequences Of Judicial Review, Leonard P. Strickman May 1990

Constitutional Cultures: The Mentality And Consequences Of Judicial Review, Leonard P. Strickman

Northern Illinois University Law Review

In this book review, Professor Strickman concludes that, overall, Robert Nagel has produced a thought-provoking book that endorses judicial self-restraint by the United States Supreme Court. Although this review challenges some of Nagel's assertions, Strickman maintains this book should be a valuable addition to the libraries of constitutional law scholars.


The Evolution Of The National Court Of Appeals Controversy: An Emerging Negative Consensus?, James A. Gazell Nov 1986

The Evolution Of The National Court Of Appeals Controversy: An Emerging Negative Consensus?, James A. Gazell

Northern Illinois University Law Review

An examination of the debate concerning the creation of a National Court of Appeals. A consensus has emerged which rejects the proposal as premature and unnecessary. Thus, the Supreme Court may have to look to other means in order to ease the burden of its caseload.


Harper & Row, Publishers V. Nation Enterprises - Rewriting The Fair Use Criteria?, Douglas B. Teaney May 1986

Harper & Row, Publishers V. Nation Enterprises - Rewriting The Fair Use Criteria?, Douglas B. Teaney

Northern Illinois University Law Review

An examination of the Supreme Court's first detailed discussion of the doctrine offair use in copyright law as embodied in the Copyright Revision Act of 1976. Particular attention is given to the Court's innovative analysis of fair use factors.