Vol 35. No.3 Spring 2011 | School of Law | SIU

Southern Illinois University

Vol 35. No.3 Spring 2011 | School of Law | SIU

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Vol 35. No.3 Spring 2011

ARTICLES

Why the Jews?

George Anastaplo (401)
On its face, some may see this “article” as being out of place in a law journal.  After reading through the first few pages, the reader will quickly find out that this is not an article, but a transcript.  George Anastaplo and Simcha Brudno are both legends in their own right, but together they form a daunting wall of wisdom.  I have been fortunate, in evaluating the entire conversation, to watch the progression of the Anastaplo-Brudno conversations.  This conversation in particular delves into Brudno’s opinions on why the Jews drew the brunt of the Nazi’s persecution.  I hope you, like me, find the transcript to be both eye opening and thought provoking.  Editor-in-Chief: Ross Sorensen.

Let’s Put the Fear in the FERA! Suggestions to Make the Fraud Enforcement and Recovery Act of 2009 a Strong Fraud Deterrent

Jim Moye (421)
In 2009, Congress passed the Fraud Enforcement Recovery Act to combat the recent surge in fraud.  This article reviews the major fraud cases of the last two years, including healthcare fraud, mortgage fraud, and improper pharmaceutical labeling.  It then argues that, although FERA was a valiant attempt by the federal government to address the surge in fraudulent behavior, the law did not go far enough to dissuade such behavior.  The author proposes stronger measures, such as permanently banning FERA violators from federal contract and program consideration, increasing the financial liability of those violating the law to reflect the full financial impact of their fraud, requiring violators to bear all financial liability regardless of their participation in uncovering the fraud, and creating a unified fraud database, in order to more effectively deter fraudulent activity and hold perpetrators accountable. Articles Editor: Tonya Joy Reedy.

Does the Automatic Stay of the Bankruptcy Code Trigger the Illinois Savings Statute: Why the Illinois Supreme Court Needs to Address the Issue

Seth Howard (433)
In 1983, the Illinois Supreme Court held that a plaintiff’s state court statute of limitations period is tolled by the automatic stay provision of the Bankruptcy Code when a defendant debtor claims bankruptcy.  Thus in an Illinois State Court, a plaintiff will have the total number of days that the automatic stay was in place added to the regular statute of limitations to file a claim.  However, in the decades since Illinois’s interpretation of the automatic stay provision, a vast majority of other jurisdictions have held that Bankruptcy Code compels no such modification to a state statute of limitations period. This comment analyzes the plain language, legislative intent, and public policy behind the automatic stay provision of the Bankruptcy Code to show that the Illinois Supreme Court’s analysis of the automatic stay provision was flawed and that their conclusion on the provision’s scope was in error. In analyzing the flawed rationale of the Illinois interpretation of the automatic stay provision, the author proposes a method by which the court can revisit the statute of limitations question. The proposed solution takes into account related issues, such as the Illinois Savings Statute, and resolves the question of whether the automatic stay provision should actually toll Illinois state statute of limitation periods in a way that reduces confusion for plaintiffs and brings Illinois law in line with how the vast majority of the other jurisdictions have held regarding this issue. Articles Editor: Matt R. Avis

The Medical Device Federal Preemption Trilogy: Salvaging Due Process for Injured Patients

Demetria D. Frank-Jackson (453)
Ignoring over a century of tort law precedence, ultimately leaving thousands of people all over the country injured by medical devices without remedy, the prevailing jurisprudence on medical device federal preemption is both current and relevant.   Due to the inherent ambiguity of the preemption provision Medical Device Amendments of 1976, where contemporary medical device litigation had its beginnings, the regulatory nature of common law tort claims against medical device manufacturers has been overwhelming called into question. Given this socio-judicial backdrop, the Article focuses on two rapidly developing areas of law: (1) preemption of certain medical device claims following the U.S. Supreme Court’s rulings in Buckman v. Plaintiffs’ Legal Committee and Riegel v. Medtronic, Inc.; and (2) the pleading standard articulated in Bell Atlantic Corp. v. Twombly and its implications for plaintiffs who have been injured by medical devices that have received premarket approval by the Food and Drug Administration.   The Article examines the federal courts’ repeated and excessive misinterpretations and misapplications of BuckmanRiegel, and Twombly, resulting in inappropriate dismissal of common law claims of even the most seriously injured medical device patients, so that the same ambiguities currently present in the MDA can be avoided in any future versions of this legislation.

The Article also posits the necessary interpretations and application of these three cases by federal courts and why this analytical framework is particularly appropriate given the historical and legislative landscape behind the enactment of the Medical Device Amendments, traditional preemption and tort principles and the loose pleading guidelines embedded in the Federal Rules of Civil Procedure.  First the Article comments, because theBuckman ruling was only intended to preempt state law claims which fail to assert traditional common law causes of action, preemption under this case is rarely warranted.  Second, because of the Riegel court’s refusal to specifically identify what common law causes of action survive federal preemption, courts should severely limit preemption based on a Riegelanalysis.  Finally, the Article notes, Twombly-pleading and Riegel-preemption should be evaluated as two very distinct issues and courts should be reluctant to apply an overly-strict or heightened application of the pleading requirements set forth in Twombly based on the special nature of medical device cases and tradition of relaxed pleadin

COMMENTS

The References of the Twenty-First Century: Regulating Employers’ Use of Social Networking Sites as an Applicant Screening Tool

Cara R. Sronce (499)
The advent of the social networking website has transformed Internet usage from having a primarily information-seeking to information-sharing purpose. While these websites provide useful avenues by which to reconnect with friends and family or to promote a business or hobby, their positive utility is somewhat burdened by problems they can cause users.  In particular, there is growing concern over the problems these websites cause job-seekers and potential employers, who may now look beyond what applicants present in their resumes, references, and interviews.  Many now screen applicants based on the information gathered from browsing an applicant’s online personality.  Because of the concerns over employers’ use of this technology, some legal scholars have advocated the need for a law regulating such use. In light of the current discourse on this subject, this Comment discusses whether there should be a law, similar to or an expansion of, the Fair Credit Reporting Act, requiring employers to notify applicants if they are denied employment based on information found on their social networking profile.  While opposing the contention that the FCRA should be extended to social networking websites, this Comment argues some disclosure is necessary to protect employers and applicants alike.

Medical Malpractice Insurance in Illinois: Where We’ve Been and Where We’re Going AfterLebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)

Grant McBride (517)
In the last thirty-five years, the Illinois legislature has passed three different statutory caps on compensatory damages in medical malpractice cases. Each time, the Illinois Supreme Court has invalidated those damage caps. This comment examines the history of medical malpractice reform in Illinois and how the Illinois Supreme Court has responded to those reform efforts. The author reviews whether caps on compensatory damages truly effectuate the stated goals of decreasing the cost of medical malpractice insurance and increasing the availability of medical care. This comment also reviews a number of alternatives to damage caps that would more efficiently achieve those goals without unfairly depriving severely injured plaintiffs of the ability to be made whole by the civil tort system.

CASENOTES

Unauthorized Access to Web-based E-mail: Recovery Under the Stored Communications Act After Van Alstyne v. Elec. Scriptorium Ltd., 560 F.3d 199 (4th Cir. 2009)

Kory R. Watson (543)
Web-based e-mail communication, or webmail, has become extremely popular in the last decade. The ability to send and receive e-mail anywhere an internet connection is available is one major reason for its popularity. Webmail communication is provided free of charge by large webmail providers such as Hotmail, Yahoo! Mail, AOL, and Gmail. Just like users of traditional communication channels, those engaging in webmail communication should be afforded protection and privacy from unauthorized access. The Stored Communications Act provides webmail users with such protection and privacy. Van Alstyne v. Electronic Scriptorium, Ltd., however, has threatened the remedial integrity of this statute by interpreting it in a way that requires a plaintiff, whose private webmail has undisputedly been compromised, show proof of some harm in order to recover statutory damages. This Casenote examines how the Fourth Circuit Court of Appeals improperly interpreted the Stored Communications Act and the implications such interpretation may have on webmail users.

The Ninth Circuit Forecloses a Bullet Sized Hole in the PLCAA in Ileto v. Glock, 565 F.3d 1126 (9th Cir. 2009)

Ross J. Sorensen (573)
In 2005, Congress passed the the Protection in Lawful Commerce in Arms Act.  The Act provided for the immediate dismissal of claims against gun manufacturers for either making or distributing weapons that were used in criminal acts.  This Casenote discusses the issues before the Ninth Circuit in Ileto v. Glock.  The case stemmed from a shooting spree, in which the victim’s relatives sued the manufacturers and distributors of the weapons used by the gunman.  The Ninth Circuit found that the PLCAA preempted the claims brought by the plaintiff, but left an open roadmap in doing so.  The court went to great lengths to support its decision and may have unintentionally created a loophole in the Act.  This Casenote suggests that courts should use a plain meaning interpretation of the statute to avoid creating exceptions not intended by Congress.