Vol 41. No.3 Spring 2017 | School of Law | SIU

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Vol 41. No.3 Spring 2017

ARTICLES

Graduation Ceremonies: A Prayer for Balancing Sponsorship and Censorship

Anton Sorkin.............................................................................. 345

The battle over school prayer, beginning in the aftermath of Engel v. Vitale, has sparked a wave of controversy that was kindled by the graduation prayer decisions of Lee v. Weisman and Santa Fe v. Doe.  While proponents of a strict separationist approach use these cases as a sword to remove all traces of religion from public schools, the decisions themselves do not require such drastic measures.  While teacher-led prayer and bible studies are certainly a relic of our former self, student-initiated religious speech at graduation ceremonies is very much alive—possessing those qualities embedded in our First Amendment that guarantee the freedom of religion and speech.  Despite the many school boards that capitulate to threats of litigation, the law is not as settled as some would have them believe.

This Article attempts to introduce and resolve the varying conflicts and pitfalls in the context of graduation prayer and the larger debate regarding the presence of religion in public schools.  It traces the language of each circuit that has faced the issue of graduation prayer after Lee in an effort to discover the available room for religious speech at graduation ceremonies.  The contributions of Kathleen Brady, Paul Horwitz, and the debate within the Eleventh Circuit are largely the ingredients for this Article’s consolidated solution—carving out where exceptions should be allowed and where school officials are wise to tread lightly.

 

Bellesiles’s Arming America Redux: Does The Gunning of America Rewrite American History to Suit Modern Sensibilities?

Clayton E. Cramer..................................................................... 403

Fifteen years ago, Michael Bellesiles’s Arming America was the darling of antigun intellectuals because it created an entirely new perception of the American relationship to guns.  It implicitly argued for a much narrower reading of the Second Amendment that was compliant with an America (then) that hated guns and did not own them.  Questions were soon raised about the accuracy of the statistics in Bellesiles’s articles and book, his honesty about where he researched documents, his widespread alteration of quotes, and his citations to documents that directly refuted his claims.  He rapidly went from tenured professor of history at Emory University to bartender, picking up some unprecedented punishments for fraud along the way.  A new book, Pamela Haag’s The Gunning of America: Business and the Making of American Gun Culture makes many of the same arguments and demonstrates the dangers of unexamined assumptions.  Judges and their clerks need to be aware that, while the future is unknown, the past changes at the whim of careless historians.

  

COMMENTS

Reining in the Writ: Limiting the Seventh Circuit’s Discretion Under 28 U.S.C. § 2255 in Federal Death Penalty Cases

Jerrod H. Montgomery............................................................... 439

Bruce Webster was convicted in 1994 of the brutal rape and murder of an underage girl, as part of an ongoing drug operation.  Mr. Webster sought to overturn his death sentence under the Supreme Court’s decision in Atkins v. Virginia, which forbids the execution of persons with intellectual disabilities.  The issue of whether Mr. Webster is a person with intellectual disabilities was litigated at trial, and throughout the Fifth Circuit for nearly twenty years.  At every level, Mr. Webster’s contention was denied, and he was transferred to the federal death chamber in Terre Haute, Indiana.  Subsequently, under the jurisdiction of the Seventh Circuit, Mr. Webster attempted to use the little-known savings clause, 28 U.S.C. §2255(e), to test the legality of his sentence.  The Seventh Circuit concluded, in a divided en banc decision, that his sentence was potentially “inadequate or ineffective” and ordered a new hearing as to the question of his mental abilities.

This Comment explains why the Seventh Circuit’s decision has far-reaching consequences beyond this case, and misconstrues the proper purpose of the savings clause.  Congress should amend § 2255 to properly align with state habeas corpus procedures and the plain language of the statute.  A correct application of § 2255 would also preserve the proper deference given a trial court’s determination of fact.

 

Rap Lyrics, Schools, and Free Speech: Examining the Limits of Free Speech of Students outside of Schools and on Social Media

Bret M. Thixton.......................................................................... 463

With the rise of the political correctness movement, the education system is split on how best to handle issues revolving around student speech.  Some institutions clamp down on students by creating safe spaces or instructing teachers and professors to avoid certain words; others continue to allow students to exercise their various forms of speech nearly unabridged.  Each institution has its own speech policy, and policies can vary from extremely limiting to a nearly free-range for ideas, speech, and expression.  While the Constitution allows for freedom of speech, the Supreme Court has found that in certain situations, that right may be limited.

This Comment offers a model policy for the use of every educational institution.  While students have certain rights within the education system, there are limitations.  The proposed policy aims to bring these competing interests together for a fair system that both encourages the freedom of speech and the legitimate protection of students.

 

CASENOTES

 

You’ve Got Mail: Analyzing the Constitutionality of Speeding Cameras in City of Moline Acres v. Brennan, 470 S.W.3d 367 (Mo. 2015)

Jennifer M. Lancaster................................................................. 485

Municipalities are finding new ways to penalize drivers for violating traffic laws.  Throughout the United States, municipalities have increasingly used red light cameras and speeding cameras to issue citations.  Municipalities’ use of red light and speeding cameras has sparked litigation, resulting in countless plaintiffs filing suits to challenge the constitutionality of the ordinances.  The Missouri Court of Appeals previously addressed the constitutionality of red light cameras, but neither the Missouri Court of Appeals nor the Missouri Supreme Court has issued an opinion on a municipality’s use of speeding cameras. 

This Note discusses the 2015 Missouri Supreme Court case, City of Moline Acres v. Brennan, and its ruling on the constitutionality of speeding cameras.  This Note argues the court correctly held the speeding camera ordinance unconstitutional.  It further argues the court wrongly analyzed the presumption that a speeding camera ordinance is allowed to create and wrongly held the ordinance did not conflict with state law.  Finally, this Note addresses how this decision modified existing Missouri law on the use of automated traffic enforcement systems. 

 

One Act, Many Crimes?: Analyzing the Court’s Decision in People v. Almond, 2015 IL 113817, 32 N.E.3d 535

Rahnesha C. Williams................................................................. 505

One act should only amount to one crime.  Illinois employs the one-act, one-crime doctrine which, as the name states, only allows a defendant to be convicted of one offense, based on a single act.  The Illinois Supreme Court has constantly redefined and changed the circumstances of when this rule applies.  More recently, it has failed to apply this rule in situations that it was created to prevent.

In People v. Almond, the Illinois Supreme Court decided not to apply the one-act, one-crime doctrine where the defendant had been charged with two crimes—possession of a gun and possession of the ammunition inside that gun—based on a single act.  This Note explains that the Illinois Supreme Court was incorrect in failing to apply this doctrine.

This Note argues that the Illinois Supreme Court failed to look at the plain meaning of the statute, applied inapplicable precedent, and failed to consider the purpose of the doctrine.  Finally, this Note concludes that the Illinois Supreme Court’s interpretation in Almond carved out a rule that has neither a true beginning nor an end.