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1993

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Full-Text Articles in Law

An Equitable Approach To Products Liability Statutes Of Repose, Mark W. Peacock Nov 1993

An Equitable Approach To Products Liability Statutes Of Repose, Mark W. Peacock

Northern Illinois University Law Review

This comment addresses the applicability of the doctrine of equitable estoppel to products liability statutes of repose. The comment specifically focuses upon the situation where the injury caused by the defective product occurs after the repose period has ended and it is alleged that the manufacturer concealed from the customer its knowledge of the defect. The author concludes that the principles of equitable estoppel should be applied to bar the manufacturer from asserting the statute of repose as a defense where the manufacturer intentionally withheld its knowledge of the unreasonably dangerous defects of its product from the consumer.


Legislative Term Limitation Under A "Limited" Popular Initiative Provision?, Lawrence Schlam Nov 1993

Legislative Term Limitation Under A "Limited" Popular Initiative Provision?, Lawrence Schlam

Northern Illinois University Law Review

This article addresses the need for change in a seniority-based political system which fosters and is dominated by self-serving career politicians who rarely appear to serve the public interest. Campaign finance reforms and other remedial approaches show no signs of abating this situation. Term limitations, however, offer a reasonable check on the evil inherent in prolonged legislative power. Even though the constitutionality of state-enacted limitations on federal legislators is debatable, state enacted limitations on state legislative terms are constitutional. The "limited" popular constitutional initiative provided for in the 1970 Illinois Constitution--and the Illinois Supreme Court decisions interpreting that provision--appear to …


The Cents Of It: Dischargeability And Environmental Claims Under The Bankruptcy Code, Denise M. Schuh Nov 1993

The Cents Of It: Dischargeability And Environmental Claims Under The Bankruptcy Code, Denise M. Schuh

Northern Illinois University Law Review

Courts have been unable to develop a consistent body of precedent as to the point at which a CERCLA claim arises under the Bankruptcy Code due to the competing policy interests involved. This comment analyzes the current approaches employed by the courts and concludes that the current approaches are inadequate to provide a compromise between the policy objectives of both CERCLA and the Bankruptcy Code. This comment proposes a judicial actual notice standard in conjunction with legislative action to enact an environmental liability exception to the dischargeability provisions of the Bankruptcy Code.


Providing Creative Remedies To Bystander Emotional Distress Victims: A Feminist Perspective, Deborah K. Hepler Nov 1993

Providing Creative Remedies To Bystander Emotional Distress Victims: A Feminist Perspective, Deborah K. Hepler

Northern Illinois University Law Review

This article discusses the tort of bystander emotional distress from a feminist perspective. The Article concentrates on emotional distress which flows from witnessing the physical injury or death of a loved one. The article begins with an examination of the difficulties courts have in dealing with such cases. It proceeds to a discussion regarding Stanley Ingber's theory for dealing with such harms. Finally, the article argues for a more creative approach to a resolution of emotional distress claims in order to expose the underlying biases that are inherent in emotional distress claims, and concludes that a more flexible approach would …


Characterization And Assignment Of Corporate And Shareholder Income, Daniel M. Schneider Nov 1993

Characterization And Assignment Of Corporate And Shareholder Income, Daniel M. Schneider

Northern Illinois University Law Review

A fertile group for the development of differentials arises in dividend distributions made by corporations to their shareholders. Professor Schneider analyzes the way in which differentials in dividend income have been exploited: whose income it is; is it ordinary income or capital gain; and has a dividend been disguised as proceeds from the sale of stock, or a sales proceed as a dividend (the Waterman Steamship problem). He concludes that differentials between various types of statutes--who is the taxpayer, at what rate is the income taxed--inevitably leads to taxpayers trying to meet favorable characterizations and to avoid negative characterizations. The …


The Untimely Demise Of The Involuntary Confession Material Witness Rule In Illinois, Stephanie Rae Williams Nov 1993

The Untimely Demise Of The Involuntary Confession Material Witness Rule In Illinois, Stephanie Rae Williams

Northern Illinois University Law Review

This article examines the recent elimination of the material witness rule, which governed the admissibility of confessions in criminal cases. The article first traces the evolution and Fifth Amendment background of the rule. Next, the article discusses the rash action taken by the Illinois Supreme Court when it rejected the rule. Finally, the article concludes by showing that the rule was a necessary Fifth Amendment protection and has been reasonably applied.


United States V. Nixon, Twenty Years After: The Good, The Bad And The Ugly--An Exploration Of Executive Privilege, K. A. Mcneely-Johnson Nov 1993

United States V. Nixon, Twenty Years After: The Good, The Bad And The Ugly--An Exploration Of Executive Privilege, K. A. Mcneely-Johnson

Northern Illinois University Law Review

The following article attempts to conceptualize United States v. Nixon and the strengthened doctrine of Executive Privilege it beget. This is accomplished through the examination of Executive Privilege's historic roots, the events surrounding the Nixon case, the hallmark ruling itself, the shadowy impact upon subsequent administrations, and the tension of secrecy and accountability necessitated by the doctrine. Finally, it concludes with alternatives that would minimize the dangerous potential that exists under the current permutation of the doctrine.


Mid-Atlantic Ethics Commitee Newsletter, Fall 1993 Oct 1993

Mid-Atlantic Ethics Commitee Newsletter, Fall 1993

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.


Theories Of Poetry, Theories Of Law, Lawrence Joseph Oct 1993

Theories Of Poetry, Theories Of Law, Lawrence Joseph

Vanderbilt Law Review

I write poetry." Also, since 1976, when I was admitted to practice before a state bar, I have served as a law clerk for a justice of a state supreme court, practiced, and mostly taught law. About the time that I began law school, while I was writing poems that would appear in my first book, an extraordinary change in jurisprudence began to occur, one which focused on legal language as something more than a medium for conveying singular meaning. This legal theory has become as important as any since legal realism. Because I also have written essays and re- …


Harmless Error In Federal Habeas Corpus After Brecht V. Abrahamson, John H. Blume, Stephen P. Garvey Oct 1993

Harmless Error In Federal Habeas Corpus After Brecht V. Abrahamson, John H. Blume, Stephen P. Garvey

William & Mary Law Review

No abstract provided.


To Serve And Yet To Be Protected: The Unconstitutional Use Of Coerced Statements In Subsequent Criminal Proceedings Against Law Enforcement Officers, Andrew M. Herzig Oct 1993

To Serve And Yet To Be Protected: The Unconstitutional Use Of Coerced Statements In Subsequent Criminal Proceedings Against Law Enforcement Officers, Andrew M. Herzig

William & Mary Law Review

No abstract provided.


Gender In The Military: Androcentrism And Institutional Reform, Kathryn Abrams Oct 1993

Gender In The Military: Androcentrism And Institutional Reform, Kathryn Abrams

Law and Contemporary Problems

Military exclusion policies have been challenged by straight women, gays and lesbians. Questions about the arguments and the institutional mechanisms through which change can best be achieved are discussed.


Mid-Atlantic Ethics Committee Newsletter, Summer 1993 Jul 1993

Mid-Atlantic Ethics Committee Newsletter, Summer 1993

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.


Takings Term Ii: New Tools For Attacking And Defending Environmental And Land-Use Regulation, Michael Allan Wolf Jul 1993

Takings Term Ii: New Tools For Attacking And Defending Environmental And Land-Use Regulation, Michael Allan Wolf

Northern Illinois University Law Review

The constitutional rules of the game for environmental and land-use advocates and commentators shifted noticeably during the October 1991 Term of the United States Supreme Court. This article considers the impact of three recent cases--Lucas, Yee, and PFZ--on the structure and patterns of federal takings law and on the strategy employed by those charged with challenging or supporting regulations that arguably effect a taking of private property in the public interest.


The Costs Of Pollution Regulation: Economic And Policy Implications For Illinois, Charles H. Shanabruch Jul 1993

The Costs Of Pollution Regulation: Economic And Policy Implications For Illinois, Charles H. Shanabruch

Northern Illinois University Law Review

This article examines the economic implications of pollution regulation in Illinois. This examination begins with an analysis of the economic structure of Illinois and industries' role in this structure. The article then examines the impact that environmental regulation has on the economic structure, concentrating on its effects on industry. The article next examines government's role in environmental regulation and concludes with the proposition that in order to foster economic growth in conjunction with environmental protection, the State and industry must embrace pollution prevention.


Borders, Barriers, And Other Obstacles To A Holistic Environment, Steven M. Siros Jul 1993

Borders, Barriers, And Other Obstacles To A Holistic Environment, Steven M. Siros

Northern Illinois University Law Review

This article addresses the barriers and obstacles that are facing parties harmed by transboundary pollution in the Great Lakes ecosystem. The article advocates the breakdown of reciprocal access for parties on both sides of the border. The article further advocates the breakdown of substantive barriers facing parties harmed by transboundary pollutants via the integration of the fragmented regulatory scheme into one holistic environmental statute. The environment must be looked at in a holistic manner, and the breakdown of the substantive and procedural barriers facing parties affected by pollutants is a step in that direction.


Common Law Liability For Leaking Underground Storage Tanks, Michael J. Maher Jul 1993

Common Law Liability For Leaking Underground Storage Tanks, Michael J. Maher

Northern Illinois University Law Review

This article examines Illinois common law theories of liability for owners and operators of leaking underground storage tanks. Specifically, this article explores trespass, nuisance, negligence, and strict liability as theories of recovery for damages caused by leaking underground storage tanks.


The Importance Of Negotiations In Illinois Environmental Rulemaking And Overview Of The Illinois Regulatory Process, James T. Harrington Jul 1993

The Importance Of Negotiations In Illinois Environmental Rulemaking And Overview Of The Illinois Regulatory Process, James T. Harrington

Northern Illinois University Law Review

This article helps to unravel the complexity of the vast array of agencies and procedures involved in environmental regulation. The article begins by examining the various agencies and their respective roles in environmental regulation. The article advocates an improved system of rulemaking which would allow more public participation by interested parties leading to a more effective system of environmental regulation in Illinois.


Wetlands Preservation In The United States: A Case Of Fragmented Authority, Lettie Mcspadden Wenner Jul 1993

Wetlands Preservation In The United States: A Case Of Fragmented Authority, Lettie Mcspadden Wenner

Northern Illinois University Law Review

This article addresses the problems which have been associated with environmental regulation in the context of wetlands preservation. The article begins by reviewing how wetlands protection evolved from the early seventies. The article concentrates on the Clean Water Act Amendments of 1977, especially the nationwide permit system. The article provides a comprehensive discussion of the permitting process. The article concludes that there are many changes that need to be made, especially bringing all actors involved in wetlands regulation together to attempt to remedy the problems inherent in a fragmented regulatory system.


Benefits To Industry Of Planning For Regulatory Compliance, Fredric P. Andes Jul 1993

Benefits To Industry Of Planning For Regulatory Compliance, Fredric P. Andes

Northern Illinois University Law Review

This article discusses the benefits that are to be gained by industry when it takes a planning approach to environmental compliance. The article advocates that industry establish an internal compliance planning system which results in significant long term savings. Environmental compliance problems are avoided, thereby saving industry time and money in the long run. Further, industry, by planning for the future, can impose regulatory burdens on competitors, avoid costs by reducing use of hazardous materials, and create better working relationships with regulatory authorities. The article concludes with an example of an effective compliance program.


The Triumph Of Equity, Douglas Laycock Jul 1993

The Triumph Of Equity, Douglas Laycock

Law and Contemporary Problems

It is argued that the equitable remedies of injunction and specific performance have become routine in many legal contexts. This claim is supported by an overview of the contributions of equity to remedies, procedure and substantive law and to contemporary attitudes toward discretion and formalism.


Death By Default, James Lindgren Jul 1993

Death By Default, James Lindgren

Law and Contemporary Problems

It is argued that most people would prefer that their lives not be artificially prolonged and that, in the absence of evidence that a particular person would have preferred otherwise, courts should permit life support to be withdrawn. A counter argument is presented.


Park Districts Coping With Environmental Liability And Environmental Responsibility In The Nineties, Catherine Nichols Jul 1993

Park Districts Coping With Environmental Liability And Environmental Responsibility In The Nineties, Catherine Nichols

Northern Illinois University Law Review

This article examines the special concerns that park districts must cope with as environmental enforcement efforts have been broadened to include local governmental bodies. The author analyzes the impact of environmental regulations on park districts and concludes that park districts need to strictly enforce risk management programs to minimize environmental response costs.


The Role Of The Illinois Attorney General In Environmental Enforcement, Roland W. Burris, Diane L. Rosenfeld Jul 1993

The Role Of The Illinois Attorney General In Environmental Enforcement, Roland W. Burris, Diane L. Rosenfeld

Northern Illinois University Law Review

In this article, the authors explain the critical role of the Attorney General in the enforcement of Illinois' environmental laws. Improvements made in the attorney-client relationship between the Attorney General's Office and the Illinois Environmental Protection Agency have led to streamlined enforcement of cases and a stronger prioritization of environmental matters. Attorney General Burris' hands-on management style in prosecuting environmental violations and formulating initiatives to strengthen enforcement is explained. The first part of the article describes the responsibilities and function of the Attorney General as chief legal officer for the State in his representation of State agencies and as lawyer …


“Cardozo’S Foot”: The Chancellor’S Conscience And Constructive Trusts, H. Jefferson Powell Jul 1993

“Cardozo’S Foot”: The Chancellor’S Conscience And Constructive Trusts, H. Jefferson Powell

Law and Contemporary Problems

The "chancellor's foot" is a term coined by English legal scholar John Selden for the argument that equity is an unjustified and unfortunate interference in the regular course of the rule of law. This issue is examined by focusing on a particular doctrine of equity, the constructive trust, and on a seminal figure in the development of the modern US understanding of constructive trusts, Benjamin Cardozo.


No Final Victories: The Incompleteness Of Equity’S Triumph In Federal Public Law, Thomas D. Rowe Jr. Jul 1993

No Final Victories: The Incompleteness Of Equity’S Triumph In Federal Public Law, Thomas D. Rowe Jr.

Law and Contemporary Problems

Prominent areas in which the US Supreme Court has denied equitable relief are examined, demonstrating the limited nature of equity's "triumph" in federal public law. The rationale behind the trend away from equity in such decisions is discussed.


Standing Rusty And Rolling Empty: Law, Poverty, And America's Eroding Industrial Base, Fran Ansley Jun 1993

Standing Rusty And Rolling Empty: Law, Poverty, And America's Eroding Industrial Base, Fran Ansley

UTK Law Faculty Publications

No abstract provided.


En Banc Ruling Bursts More Than Bubbles In Patent Litigation: A.C. Aukerman Co. V. Rl Chaides Construction Co. And Its Impact, Russell D. Slifer May 1993

En Banc Ruling Bursts More Than Bubbles In Patent Litigation: A.C. Aukerman Co. V. Rl Chaides Construction Co. And Its Impact, Russell D. Slifer

Northern Illinois University Law Review

This comment explains the development and application of both laches and equitable estoppel defenses in patent litigation. The comment focuses on the recent Court of Appeals for the Federal Circuit decision changing the evidentiary requirements needed to overcome a presumption of laches. In addition to the changes made to laches, the reduction in elements needed to establish equitable estoppel are reviewed. The author concludes that the changes to laches fail to provide additional protection where additional protection is justified, while the reduced elements of estoppel decrease protection for patent owners.


Filling The Court-Created Gap In The Protection Of Concerted Activities The Need For Striker Replacement Collective Bargaining, Harold A. Katz May 1993

Filling The Court-Created Gap In The Protection Of Concerted Activities The Need For Striker Replacement Collective Bargaining, Harold A. Katz

Northern Illinois University Law Review

This article discusses the adverse impact of the Mackay doctrine on the effectiveness of concerted activity by allowing the employer to continue production with the use of permanent replacements. Restoration of a protected right to the job after the strike is settled is essential to the preservation and growth of the collective bargaining system in the United States. The author argues that the Mackay doctrine undermines the establishment of stable and enduring labor-management relations which are essential in today's competitive markets. The author concludes with a call for more constructive collective bargaining for the '90's which will improve industry's competitive …


The Endangered Species Act Under Attack: Could Conservation Easements Help Save The Esa?, Kimberley K. Winter May 1993

The Endangered Species Act Under Attack: Could Conservation Easements Help Save The Esa?, Kimberley K. Winter

Northern Illinois University Law Review

In this article the author notes that the Endangered Species Act has increasingly come under attack. The attack on the ESA has been brought about primarily due to the substantial adverse economic effects caused by enforcement of the ESA 's provision. The author seeks to alleviate the economic burden on the affected parties in order to decrease the push for ESA reform. First, the author examines Fifth Amendment taking theory and concludes that it is insufficient to rectify the problem. Second, the author examines conservation easement theory and concludes that the purchase of conservation easements by environmental organizations would be …