Vol 35. No.1 Fall 2010 | School of Law | SIU

Southern Illinois University

Vol 35. No.1 Fall 2010 | School of Law | SIU

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Vol 35. No.1 Fall 2010

ARTICLES

Practical Preparation, Student Focused, Serving the Community­—The Wills Clinical Lab Experience

Camille M. Davidson (1)
A vast majority of law students graduate with a thorough base of doctrinal knowledge; however, many of them do not know how to apply the law to a real situation.  Charlotte School of Law sought to remedy that problem.  During the spring semester of 2010, Charlotte Law began the Wills Clinic Lab, an innovative form of legal education.  The course combines practical experience with classroom training to better prepare law students for practice.  As an addition to the doctrinal course, Wills, Trusts and Estates, Charlotte Law began offering a clinic which allows students to apply the legal theories learned in the doctrinal course to actual client requests.  The Wills Clinic Lab focused on providing students with real life experiences that allow them to practice skills learned in doctrinal classes.  To effectively accomplish this, the Lab provided students with hands-on training in the areas of professionalism, client interviewing and counseling, legal document drafting, and ethical considerations.  This article also discusses the lessons learned from the first Lab and how those lessons will  be incorporated to improve the Lab in the future. Articles Editor: Cassie R. Korando

A Practical Road Map to New Illinois Ethics Rules

Thomas E. Spahn (27)
In 2009, the Illinois Supreme Court adopted a new set of rules of professional conduct for lawyers practicing in the state of Illinois.  These changes are the first complete revision of the rules since 1990 and bring a series of significant changes to the Illinois code of professional conduct.  While these new rules will not change the way a vast majority of lawyers practice on a daily basis, certain rule changes are significant and will affect practicing lawyer’s decisions regarding a variety of matters.  This comment provides a quick reference guide that will offer lawyers practicing in the state of Illinois the information they need regarding the recent revision of the Illinois rules of professional conduct.  Articles Editor: Brady M. McAninch

Answering Discovery “Subject to” Objections: Lessons from Florida’s District Courts

R. Jason Richards (127)
Cases are often won and lost during the discovery phase of trial, making it common practice for many attorneys to use every effort to preserve any possible tactical advantage for their clients.  Under both the Federal Rules of Civil Procedure and Florida’s state rules, an attorney is allowed to object to portions of discovery requests in order to promote speedy, efficient, and fair litigation.  However, the ability to object to discovery requests is being abused with alarming frequency.  It has become common practice for attorneys to answer discovery requests with a blanket reservation of all objections, rather than following the rules and making specific objections to individual requests.  Such blanket objections leave opposing counsel in the dark as to which responses are complete and which are conditioned on the boilerplate objection.  These equivocal responses lead to wasted time and resources because discovery requests are not fully answered.  This article discusses how the Federal Rules of Civil Procedure handle such abuses, as well as Florida’s recent decision to increase enforcement of discovery rules by imposing sanctions on attorneys who intentionally shield harmful information by using boilerplate objections.  Articles Editor: Heather Heisner.

COMMENTS

Enforcing Restrictive Covenants in Illinois: Is the Legitimate-Business-Interest Test Necessary?

Kelly M. Murray (137)
For over thirty years, Illinois courts have applied the legitimate-business-interest test when analyzing whether a restrictive covenant in restraint of trade is valid.  In applying the legitimate-business-interest test, courts have cited to Illinois Supreme Court precedent as support for its origin.  The Illinois Supreme Court, however, has never mentioned the legitimate-business-interest test by name.  The Illinois Appellate Court for the Fourth District has recently rejected the legitimate-business-interest test, stating that it has no basis in Illinois precedent and was created “out of whole cloth.”  This Comment argues that Illinois courts should not follow the Fourth District’s abandonment of the legitimate-business-interest test because it deviates from Illinois Supreme Court precedent and fundamental policy concerns.

Illinois’s First Attempt at Sustainable Building is Green for All the Wrong Reasons

Ross J. Sorensen (163)
Even though the idea of “green building” has been around for over four decades, it has just recently become a popular avenue for states to cut the operational costs of publicly funded buildings.  The trend towards green building began at the county and municipal level and has slowly evolved into standards that are now implemented by several states.  On July 24, 2009, the Illinois General Assembly enacted the Illinois Green Buildings Act.  The Act is relatively simple given that it only contains five sections and encompasses only a handful of pages.  The new statute creates mandatory requirements for all new state-funded buildings and major renovations.  This Comment discusses the positives and negatives of the Act’s language and argues that the General Assembly should have followed the lead of the states that have already enacted successful green building programs.

CASENOTES

Do Verbal Complaints Constitute Protected Activity under the Fair Labor Standards Act? An Examination of Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009)

Lauren A. Heischmidt (187)
Section 215(a)(3) of the Fair Labor Standards Act prohibits retaliation against an employee who has filed any complaint against an employer.  In Kasten v. Saint-Gobain Performance Plastics, Corp., the Seventh Circuit Court of Appeals, siding with the Fourth and Second Circuits, held that an employee who makes an oral complaint is not protected by the anti-retaliation provision of the Act.  This Casenote examines the social and economic implications of requiring workers to submit written complaints, instead of oral complaints, to be protected by the FLSA’s anti-retaliation provision.  Further, this Casenote proposes that section 215(a)(3) be redrafted similar to the anti-retaliation provisions of Title VII and the Family and Medical Leave Act, to clarify Congress’s intent that the statute be broadly remedial. 

Getting Rid of the Security Blanket: Why the Limited Partnership Units in Liberty Property Trust v. Republic Properties Corp., 577 F.3d 335 (D.C. Cir. 2009), Are Not “Securities”

Allison B. Pitzer (203)
The Securities and Exchange Act broadly defines the term “security.”  The Howey test, however, narrowed the definition of a “security” to be any investment contract where a person invests money and expects profits to arise solely from the efforts of others.  The effect of finding whether an interest is a security will determine whether certain disclosures are required in transactions.  The D.C. Circuit found the investment contracts in Liberty Property Trust v. Republic Properties Corp. to be “securities.”  This Casenote argues that the majority incorrectly applied the Howey test and ignored the purpose of the Securities and Exchange Act, and that the investment contracts should not have been considered “securities.”  The same parties were present on both sides of the transaction, therefore, profits were not expected to be derived solely from the efforts of others.