Vol 36. No.1 Fall 2011 | School of Law | SIU

Southern Illinois University

Vol 36. No.1 Fall 2011 | School of Law | SIU

CONTACT

SIU.EDU

Vol 36. No.1 Fall 2011

Articles

War as Metaphor and the Rule of Law in Crisis:  The Lessons We Should Have Learned from the War on Drugs

Susan P. Stuart (1)
Any number of public policy debates have been framed in terms of metaphorical war, none longer or as expensive as the War on Drugs.  This Article explores the very real harms in militarizing public policy debates by examining a small slice of the War on Drugs, that part of the War waged in schools.  Dangerous and violent rhetoric spurred the public to engage in this War, which eventually targeted children as the enemy.  As a consequence of that rhetoric, Congress spent billions of dollars on useless strategies while courts suspended children’s civil rights.  Throughout all this, we failed to examine the ethical obligations we undertake when we engage in war, even if metaphorically.  Today, politicians and pundits try to evade responsibility for using rhetoric by claiming they are only talking in metaphors.  However, the Culture War they are waging has become so much less metaphorical and more literal than even the War on Drugs became.  The abstract is becoming real, and we need to have a better understanding of the natural consequences of what we say, especially as the two sides in the “war” struggle for control over the rule of law.

Running on Empty:  Municipal Insolvency and Rejection of Collective Bargaining Agreements in Chapter 9 Bankruptcy

Richard W. Trotter (45)
This Article conducts an in-depth analysis of the facts and law surrounding the potential modification and rejection of collective bargaining agreements by municipal debtors in Chapter 9 bankruptcy.  American municipal governments are in the midst of a widespread financial crisis.  Many are facing enormous budget deficits in 2011 and beyond.  As a result, the heretofore-unthinkable option of filing for bankruptcy protection pursuant to Chapter 9 of the Federal Bankruptcy Code is becoming increasingly viable.  One of the most vital issues presented by this poorly understood chapter of the Bankruptcy Code is if and how would-be municipal debtors can modify and reject costly collective bargaining agreements with public employee labor unions.  The Article concludes that the current state of the law surrounding these issues creates an incentive for would-be debtors to resort to filing for Chapter 9 as a means of readjusting their otherwise unsustainable public labor obligations. 

When Bodily Injury Limits are Stacked, Jurisprudential Consistency Topples

Kevin P. Clark and Chris Vanderbeek (89)
Automobile insurance policies have three main types of liability coverage: bodily injury (BI), uninsured motorist (UM), and underinsured motorist (UIM).  When an insurance policy pertains to multiple vehicles and one of them is involved in an accident, often there becomes a question of how much coverage the insured should be provided – the limits for all the insured vehicles or merely the limits for the involved vehicle?  This Article explains what the answer should be where BI coverage is invoked, and why recent decisions from Illinois’ Fifth District Court of Appeals necessitate intervention by the Illinois Supreme Court.

Admission to the Bar in Illinois:  A Historical Perspective for the Last Half Century and Beyond

Stuart Duhl (109)
Admission to the bar in Illinois has undergone a variety of changes over the past 50-plus years, but very little has been written to explain such changes.  Now, with the potential of a Uniform Bar Examination (UBE) on the horizon, a historical examination of the admissions process and the changes that have taken place in Illinois may be useful in order to give some consideration and forethought as to whether Illinois should be in the forefront of adopting the UBE as its academic qualification examination.

COMMENTS

No Longer Mine:  An Extensive Look at the Environmental Protection Agency’s Veto of the Section 404 Permit Held by the Spruce No. 1 Mine

Amy S. Oxley (139)
Under section 404(c) of the Clean Water Act, the Environmental Protection Agency (EPA) has the power to veto permits for the discharge of fill or dredged materials issued by the U.S. Army Corps of Engineers.  This veto power can only be used if the discharge will have unacceptable adverse effects on water supplies, aquatic life, wildlife, or recreational areas.  The EPA’s use of its veto power is rare and is usually invoked before a section 404 permit has been issued.  The recent veto of a section 404 permit for the Spruce No. 1 Mine in Logan County, West Virginia, by the EPA has been highly controversial due to the fact that the permit had been issued to the mine four years before the veto.  This Comment argues that the EPA acted within its powers under section 404 when vetoing the Spruce No. 1 Mine permit and proposes an amendment to section 404 that limits the EPA’s ability to veto permits that have already been issued.

A Fistful of Dollars:  Bounty Hunting Under the Dodd-Frank Act’s Whistleblower Provisions

Neil Schonert (159)
In the wake of the financial crises and recessions of the new millennium, Congress realized it must take more action to avert future disasters.  The Dodd-Frank Act provided the government with more oversight and tools to tackle new problems and securities violations.  One of these tools was the Act’s whistleblower provisions, which provided monetary incentives to whistleblowers providing valuable inside information on violations in the financial sector. 

This Article examines previous attempts by Congress to secure inside information from individuals as well as the Dodd-Frank Act’s own attempt.  These prior attempts often created improper thresholds for whistleblowers, either barring good faith employees by setting too high a threshold or incentivizing bad faith employees to report minimal violations in hopes of garnering a quick bounty. This Article argues that, while the Dodd-Frank Act is a step in the right direction, more rules should be promulgated to ensure a proper threshold is created so that the government can obtain the inside information it needs while not promoting the self-interested actions of bad faith employees.

CASENOTES

Reaching from the Grave?  The Validity of Testamentary Conditions Precedent Restricting Marriage in Illinois:  In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009)

Natalie T. Lorenz (183)
Illinois courts have struggled with the extent to which decedents may exercise “dead hand control” over the living, allowing some testamentary restrictions on beneficiaries, but not others.  In Feinberg, the decedent sought to restrict his beneficiaries’ rights by allowing the beneficiaries to take their bequests only if they did not marry anyone outside the Jewish faith.  The decedent’s grandchild, a beneficiary who did not follow her grandfather’s instructions and married outside the Jewish faith, filed suit and raised the question: does this sort of restriction constitute improper dead hand control over the living?  While the Illinois Supreme Court stuck to its precedent and allowed the condition to stand, the Court did not explain why its decision made sense in modern-day society; an important concern, considering the precedent the Court followed was quite ancient.  This Note argues that when restrictions on beneficiaries’ fundamental rights take the form of conditions precedent, such as occurred in Feinberg, those restrictions should stand because they strike a proper balance between the rights of testamentary freedom and fundamental rights of the living.

It’s Like Tailing Your Vehicle for a Month:  An Analysis of the Warrantless Use of a Global Positioning System in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)

Timothy J. Shrake II (205)
The Fourth Amendment protects individuals from unreasonable searches and seizures.  As technology advances, the extent of individual rights are debated and applied to new circumstances.  One such technological innovation, global positioning systems (GPS), as utilized by various law enforcement agencies, goes to the heart of Fourth Amendment issues.  In looking at the use of GPS devices to track individuals, courts must ask whether the use of such a device constitutes a search and also whether long-term GPS tracking violates individuals’ right to privacy.  This Note specifically examines the D.C. Circuit Court of Appeals case of United States v. Maynard.  In Maynard, the court found that warrantless, prolonged GPS tracking of an individual’s vehicle violated the Fourth Amendment; and also, the court found that the individual had a right to privacy in the aggregate of his vehicular movements over the course of a month.  In analyzing the D.C. Circuit Court’s opinion, this Note looks to Supreme Court precedent, namely United States v. Knotts, to reach the conclusion that the D.C. Circuit Court erred in their decision.  Knotts supplies the key precedent that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”  Furthermore, this Note considers the expectation of privacy in Maynard in light of other Supreme Court cases, and it briefly discusses the idea of societal acknowledgment of a privacy right.