Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 28 of 28
Full-Text Articles in Law
J.E.B. V. Alabama Ex Rel. T.B.: Gender-Based Peremptory Challenges On Trial, Stacey L. Wichterman
J.E.B. V. Alabama Ex Rel. T.B.: Gender-Based Peremptory Challenges On Trial, Stacey L. Wichterman
Northern Illinois University Law Review
This note examines the United States Supreme Court decision holding that litigators may not discriminate on the basis of gender during the process of selecting jurors in that it violates the Equal Protection Clause of the Fourteenth Amendment. In addition to discussing the history of peremptory challenges and jury selection, the author proposes a limitation on the number of peremptory challenges allowed during jury selection. In doing so, the author explains that peremptory challenges have historically been a useful and integral part of jury selection, but the process is now a fertile ground for abuse. The author concludes that unless …
Schiro V. Farley: If At First You Don't Succeed, Trial And Trial Again; The Demise Of The Double Jeopardy Clause Within The Context Of Capital Punishment, Patrick L. Edgerton
Schiro V. Farley: If At First You Don't Succeed, Trial And Trial Again; The Demise Of The Double Jeopardy Clause Within The Context Of Capital Punishment, Patrick L. Edgerton
Northern Illinois University Law Review
This note examines the United States Supreme Court decision allowing a trial judge in the sentencing phase to use as an aggravating circumstance to impose the death penalty, an element of which the jury was silent in the guilt or innocence phase. The author contends that the majority's application of the Double Jeopardy Clause, including the doctrines of collateral estoppel amid implied acquittal, was not only erroneous but also inconsistent in light of the Court's prior holdings treating capital cases as two trials: (1) guilt or innocence phase; and (2) sentencing phase. Focusing on the "trial-like" nature of the sentencing …
The Public Figure Doctrine: A Reexamination Of Gertz V. Robert Welch, Inc., In Light Of Lower Federal Court Public Figure Formulations, Mark D. Walton
The Public Figure Doctrine: A Reexamination Of Gertz V. Robert Welch, Inc., In Light Of Lower Federal Court Public Figure Formulations, Mark D. Walton
Northern Illinois University Law Review
This article focuses new attention oi the United States Supreme Court decision in Gertz v. Robert Welch, Inc., the seminal defamation case in which the Court sets out the current test for determining whether a defamation plaintiff is a public figure. The Courts of Appeals have differed in their formulations of the Gertz test, which in turn has led to inconsistent application of the public figure doctrine. Through an examination of the history of defamation law and an analysis of recent lower court public figure decisions, the author posits that the Gertz test is unlikely to ever be universally applied.
Retroactive Taxation: United States V. Carlton -- The Taxpayer Loses Again!, Ronald Z. Domsky
Retroactive Taxation: United States V. Carlton -- The Taxpayer Loses Again!, Ronald Z. Domsky
Northern Illinois University Law Review
Unlike criminal laws, the ex post facto constitutional protection does not extend to civil tax matters. Nor are the words "fairness" or "equity" found anywhere in the Internal Revenue Code. Even as this is written, Congress is debating major tax changes, some of which may be retroactive. Should taxpayers be required to plan their financial affairs always subject to pending tax legislation or legislation that hasn't even yet been proposed? The Carlton case is one of the most egregious examples of taxpayer abuse in this area.
Awareness Of Meaning In Libel Law: An Interdisciplinary Communication & Law Critique, Clay Calvert
Awareness Of Meaning In Libel Law: An Interdisciplinary Communication & Law Critique, Clay Calvert
Northern Illinois University Law Review
This article critiques, from a communication and law perspective, a proposal to add another element to the already complex calculus of constitutional libel law. The element--a subjective state of mind hurdle closely akin to the actual malice standard--requires libel plaintiffs to prove that defendants were aware of the defamatory meaning conveyed by their messages at the time of publication. The article suggests that while free speech and press interests under the First Amendment may militate in favor of courts adopting this element, it: 1) conflicts with tie reality of communication processes inherent in meaning determination; 2) denigrates the pivotal roles …
Designing A "System For Idiots": An Analysis Of The Impracticality Of Davis V. United States On Ambiguous Waivers Of The Right To The Presence Of Counsel, William G. Worobec
Designing A "System For Idiots": An Analysis Of The Impracticality Of Davis V. United States On Ambiguous Waivers Of The Right To The Presence Of Counsel, William G. Worobec
Northern Illinois University Law Review
This article explains the United States Supreme Court holding that police, upon a suspect's equivocal reference to their Fifth Amendment right to the presence of counsel during interrogation, are no longer required to clarify the suspect's true intent. The author contends the majority was erroneous in holding equivocal waivers to be equivalent to clear waivers, and that the decision could not be reconciled with Miranda and its progeny. The Court has impermissibly placed the burden of a mastery of the law on the less knowledgeable suspect, and consideration need be given to existing lower court proposals, or a modification thereof …
Their Finest Hour: Lawyers, Legal Aid And Public Service In Illinois, Joseph A. Dailing
Their Finest Hour: Lawyers, Legal Aid And Public Service In Illinois, Joseph A. Dailing
Northern Illinois University Law Review
This article details the history of the provision of free legal services for the poor. Advocates of the governmentally-funded Legal Service Corporations (LSC) have encountered numerous obstacles and endured ferocious attacks from opponents. At times it appeared that the entire LSC program was in jeopardy. The author recounts the establishment of the LSC program in Illinois, summarizes the LSC's many accomplishments, and outlines the challenges that the Illinois legal community will face in continuing to offer legal services to the impoverished of our state.
The Disparate Treatment Of Student And Family Farmer Debtors: Suggestions For Statutory Reform Of Bankruptcy Policy, Nancy H. Kratzke, Thomas O. Depperschmidt
The Disparate Treatment Of Student And Family Farmer Debtors: Suggestions For Statutory Reform Of Bankruptcy Policy, Nancy H. Kratzke, Thomas O. Depperschmidt
Northern Illinois University Law Review
The resolution of bankruptcy litigation involving individuals under the governmental student loan programs and family farmers under Chapter 12 of the Bankruptcy Code provides an intriguing insight into congressional policy. That divergence is especially prominent in the treatment of "disposable income" under these two statutory provisions. When deciding issues relating to whether income should go to unsecured creditors or be used to offset future farming costs, courts tend to interpret the Code in favor of debtors; conversely, the Code creates, and courts perpetuate through their rulings, a clear presumption against discharging student loan obligations. The debtor will prevail only if …
Vicarious Liability Of An Employer-Master: Must There Be A Right Of Control?, John Dwight Ingram
Vicarious Liability Of An Employer-Master: Must There Be A Right Of Control?, John Dwight Ingram
Northern Illinois University Law Review
Most courts impose vicarious liability on an alleged employer-master when it has a right to control the physical conduct or method of doing the work of the person who injures a third party. In other instances, courts impose vicarious liability in cases where there only an appearance of actual control exists. This article examines the difference between actual and apparent control, and the author maintains that a better test for vicarious liability is whether the injurer is acting on the employer-master's behalf.
Francis X. Riley Lecture On Professionalism, George E. Bushnell Jr.
Francis X. Riley Lecture On Professionalism, George E. Bushnell Jr.
Northern Illinois University Law Review
No abstract provided.
Introduction; The Harms And Benefits Of Nollan And Dolan, Richard A. Epstein
Introduction; The Harms And Benefits Of Nollan And Dolan, Richard A. Epstein
Northern Illinois University Law Review
This address explores the contributions made by Nollan v. California Coastal Commission and Dolan v. City of Tigard to land use law. According to the speaker, the two cases move the analysis in the proper direction by placing constraints on city planners who would require land owners to forfeit property rights as a condition for permission to improve their property. The speaker advocates that the cost of what a government wants to accomplish should be distributed evenly among those who benefit, and not be borne exclusively by one land owner as a condition for a building permit. In addition, the …
Conditional Zoning In Illinois: Beast Or Beauty?, Charles L. Siemon
Conditional Zoning In Illinois: Beast Or Beauty?, Charles L. Siemon
Northern Illinois University Law Review
Although courts have traditionally been skeptical of conditional zoning, the fundamental and well taken grounds for such skepticism have been eclipsed by the emergence of planning. Conditions which are imposed pursuant to a comprehensive plat and are directed at achieving the goals of the plan are likely to be upheld, particularly if they are designed to benefit the surrounding properties and to advance the public welfare. A bilateral agreement which expressly or impliedly commits a zoning authority to a legally binding promise is likely to be invalid. This article examines Goffinet v. Christian County, the leading Illinois case on both …
Desire For Community Growth In Northeastern Illinois As Reflected In Annexation Agreements, Kimberly L. Sullivan
Desire For Community Growth In Northeastern Illinois As Reflected In Annexation Agreements, Kimberly L. Sullivan
Northern Illinois University Law Review
It has been argued that Illinois land use law gives municipalities within the State of Illinois broad discretion in making land use decisions. This being the case, the question becomes whether such latitude actually results in inequitable treatment of landowners across the state. To answer this question, recent annexation agreements from a sample of six Chicago area municipalities were examined to determine the concessions and restrictions different municipalities place on parcels of land being annexed into their communities. While some interesting patterns and relationships existed among the agreements from the sample communities, time analysis showed that the annexation agreements were …
Development Impact Fees: A Review Of Contemporary Techniques For Calculation, Data Collection And Documentation, Roger K. Dahlstrom
Development Impact Fees: A Review Of Contemporary Techniques For Calculation, Data Collection And Documentation, Roger K. Dahlstrom
Northern Illinois University Law Review
This article discusses the consequences that the United States Supreme Court decision in Dolan v. City of Tigard has had on the ability of local land use regulators to impose development impact fees. The author notes that Dolan allows local land use regulators to utilize a "rough proportionality" test for determining the amount of development impact fees that may be assessed, and the author provides cogent examples of calculating and documenting such fees in the city of Elgin, Illinois.
Illinois' Confrontation With The Use Of Closed Circuit Testimony In Child Sexual Abuse Cases: A Legislative Approach To The Supreme Court Decision Of People V. Fitzpatrick, Michael G. Clarke
Illinois' Confrontation With The Use Of Closed Circuit Testimony In Child Sexual Abuse Cases: A Legislative Approach To The Supreme Court Decision Of People V. Fitzpatrick, Michael G. Clarke
Northern Illinois University Law Review
This comment discusses an accused's rights under the Illinois Confrontation Clause and the need to protect child sexual abuse victims from the emotional trauma associated with testifying in the presence of their abuser at trial. The author contends that the use of closed circuit television is a valuable means of protecting children from such trauma without unduly infringing upon an accused's right of confrontation.
Planned Unit Development And Takings Post Dolan, Clyde W. Forrest
Planned Unit Development And Takings Post Dolan, Clyde W. Forrest
Northern Illinois University Law Review
Growing tensions between government efforts to require private property use or development in ways that promote the health, safety, and general quality of life within our communities are exacerbated by the so-called "Takings" cases. In Dolan v. City of Tigard, the United States Supreme Court declared a local condition of approval of a development permit to be insufficiently supported by the findings of the city. This article discusses how this decision seriously undermines the traditional presumption of validity of local Planned Unit development permit decisions and imposes a level of proof about such conditions which may result in denials of …
Parity And The Litigation Of Private Property Rights In The United States And Germany: Evidence In Support Of Chemerinsky's Litigant Rights Principle, Timothy L. Gartin
Parity And The Litigation Of Private Property Rights In The United States And Germany: Evidence In Support Of Chemerinsky's Litigant Rights Principle, Timothy L. Gartin
Northern Illinois University Law Review
This article reviews the stalemate in the parity debate as to whether state courts are functionally interchangeable in their likelihood to protect federal constitutional rights in general and private property rights in particular. The article then summarizes Professor Chemerinsky's litigant choice principle as a means for resolving the debate. A comparison with the German judicial system yields support for the litigant choice principle.
Procrustean Jurisprudence: An Austrian School Economic Critique Of The Separation And Regulation Of Liberties In The Twentieth Century United States, Joseph Becker
Northern Illinois University Law Review
Holmes' dissent in Lochner disparaging economics as a touchstone for liberty started this nation down the procrustean path of jurisprudiential disaster. Soon thereafter, the United States Supreme Court began separating so-called economic liberties from those later "identified" as fundamental. Ludwig Von Mises, Austrian School economist, foresaw that "as soon as the economic freedom which the market economy grants to its members is removed, all political liberties and bills of rights become humbug." This article, relying upon principles of Mises, Rothbard, and other Austrian School economists, argues that separation of economic and fundamental liberties is scientifically impossible and concludes that the …
Strange Economics Of Land Use Law: From Euclid To Euclid, Ronald S. Cope
Strange Economics Of Land Use Law: From Euclid To Euclid, Ronald S. Cope
Northern Illinois University Law Review
This article reviews some of the major cases of twentieth century land use law. The author points out that even if an economic analysis is applied to Dolan v. City of Tigard, Dolan was in a better economic position with the required exactions and therefore there was really no taking. In addition, the author contends that the responsibility for the burden of increased public improvement should rest with those who are in fact creating the need.
Current Developments In Federal Employment Discrimination Law, Julie M. Spanbauer
Current Developments In Federal Employment Discrimination Law, Julie M. Spanbauer
Northern Illinois University Law Review
The area of federal employment discrimination law has undertone vast changes over the past several years through both legislative and judicial action. This article provides, an overview of the recent congressional enactments and amendments, including the Americans With Disabilities Act, and the Civil Rights Act of 1991 which modified Title VII, the Age Discrimination in Employment Act, and 42 U.S.C. § 1981. Additionally, recent Supreme Court decisions, which have also altered some longstanding doctrines in this area, are addressed. Finally, some decisions of the courts within the Seventh Circuit are presented to provide a more detailed insight into the state …
The Obviously Impossible Attempt: A Proposed Revision To The Model Penal Code, Kyle S. Brodie
The Obviously Impossible Attempt: A Proposed Revision To The Model Penal Code, Kyle S. Brodie
Northern Illinois University Law Review
This article discusses the problems posed by attempt crimes which have no chance of succeeding (often called "obviously impossible attempts"). Impossibility has largely been abolished as a defense to attempt crimes, so the obvious impossibility of an attempted crime is legally irrelevant in determining whether or not it should be punished. Even so, the author contends that many of the reasons attempt crimes are punished do not apply to obviously impossible attempts. The author's proposed solution is to add an element of "reasonableness" to the definition of attempt crimes.
The Bar Admission Process, Gatekeeper Or Big Brother: An Empirical Study, Donald H. Stone
The Bar Admission Process, Gatekeeper Or Big Brother: An Empirical Study, Donald H. Stone
Northern Illinois University Law Review
This article provides a comprehensive statistical review of bar applications from forty eight states and questions the usefulness of the applications, in their current form, in determining one's fitness to practice law. In addition to compiling this empirical data, the article focuses on four major areas of inquiry on most applications including mental illness, substance abuse, moral indiscretions and criminal behavior. Based on this inquiry and data, the author advances a number of recommendations to be adopted by state bar examiners. He concludes that the guiding light should place the burden on bar examiners to prove unfitness, and that only …
Publish Or Perish: Judging An Article By Its Cover, Leonard B. Mandell
Publish Or Perish: Judging An Article By Its Cover, Leonard B. Mandell
Northern Illinois University Law Review
This piece takes an amusing look at the art of choosing a title for a law review article. Several examples are provided to demonstrate some of the methods often employed to create a good title. With tongue in cheek, the article's premise is that titles that are clever or witty stand a better chance of being accepted by law review editors.
Expanding The Fiduciary Duties Of Close Corporation Shareholders: The Dilemma Facing Illinois Corporate Law, Thomas J. Bamonte
Expanding The Fiduciary Duties Of Close Corporation Shareholders: The Dilemma Facing Illinois Corporate Law, Thomas J. Bamonte
Northern Illinois University Law Review
This article examines the Illinois corporate law treatment of the so-called close corporation, and in particular the trend toward increased expansion of the fiduciary duties of close corporation shareholders. In light of a contrasting trend in the state of Delaware, the author suggests that Illinois corporate law faces a dilemma. If it does not toe the Delaware line, Illinois may be viewed as a less attractive state for incorporation vis-a-vis Delaware. On the other hand, reversing course in order to follow Delaware's lead may sacrifice the independent development of Illinois corporate law. The author intends that the article contribute to …
Department Of Revenue V. Kurth Ranch: Double Jeopardy. A: Multiple Punishment Component. Q: What Is Confusion? Continuing Where Halper And Austin Left Off, Denis M. Gravel
Northern Illinois University Law Review
This note examines the United States Supreme Court decision holding the imposition of a state drug tax unconstitutional in that it violates the multiple punishment component of the Double Jeopardy Clause. The author contends that the majority's application of Double Jeopardy jurisprudence was not only faulty and erroneous, but inconsistent in light of the Court's prior holdings. The court fashioned a test which allows for a much lower level of judicial deference to the legislature, and in so doing, continued on a recent trend, albeit an erroneous one, that is expanding the scope of Double Jeopardy protection.
Legalized Gambling Activities: The Issues Involving Market Saturation, John Warren Kindt
Legalized Gambling Activities: The Issues Involving Market Saturation, John Warren Kindt
Northern Illinois University Law Review
In this article, the author discusses concerns relative to legalized gambling activities and their socioeconomic impacts. Specifically, the article examines the issues involving market saturation. The author suggests that despite increasing concerns about market saturation expressed by individual states and the legalized gambling industry, the enormous size of the Unites States economy renders it unlikely that overall market saturation will occur in the foreseeable future. The author concludes that, as a result, governments will continue to embrace legalized gambling activities for their initial tax revenues, and will ignore the enormous social and economic costs which accompany such activities.
Liteky V. United States: The Entrenchment Of An Extrajudicial Source Factor In The Recusal Of Federal Judges Under 28 U.S.C. § 455(A), Shawn P. Flaherty
Liteky V. United States: The Entrenchment Of An Extrajudicial Source Factor In The Recusal Of Federal Judges Under 28 U.S.C. § 455(A), Shawn P. Flaherty
Northern Illinois University Law Review
This note examines the United States Supreme Court's decision in Liteky v. United States, in which the Court found that intrajudicial matters are not a proper basis for recusal under the primary piece of federal judicial disqualification legislation, 28 U.S.C. § 455(a). The author argues that the Liteky Court should have utilized the test provided in § 455(a), whether the judge's impartiality "might reasonably be questioned." By focusing on the presence of an extrajudicial source factor in determining when judges should recuse themselves, the author suggests the Court ignores several pressing policy concerns.
Oregon's Procedural Due Process And The Necessity Of Judicial Review Of Punitive Damage Awards: Honda Motor Co. V. Oberg: "Stop The Insanity!", Jeff Duncan Brecht
Oregon's Procedural Due Process And The Necessity Of Judicial Review Of Punitive Damage Awards: Honda Motor Co. V. Oberg: "Stop The Insanity!", Jeff Duncan Brecht
Northern Illinois University Law Review
This note examines the United States Supreme Court's most recent decision involving the judicial review of punitive damage awards. In addition to discussing the history of punitive damages and the role they have played in American jurisprudence, the author explains Honda's importance in the punitive damages debate. The author concludes that the Supreme Court's decision reinforces the necessity of judicial involvement in the punitive damages arena and helps to slow the unsettling explosion of punitive damage awards.