Vol 43. No.3 Spring 2019 | School of Law | SIU

Southern Illinois University

CONTACT

SIU.EDU

Vol 43. No.3 Spring 2019

ARTICLES

The Second Amendment Rights of Young Adults

David B. Kopel & Joseph G.S. Greenlee................................ 495

This Article examines the Second Amendment rights of young adults, ages 18 to 20. It begins with what the Supreme Court has said about the Second Amendment rights of such persons. Parts II and III survey colonial and founding-era sources. These show that the typical age for mandatory militia duty was 16 or 18 years of age. Many other people, who were not in the active militia, were also required to keep arms at home. The colonial and early state statutes required possession not only of firearms, but also edged weapons, and tools for manufacturing ammunition, cleaning guns, and repairing guns.

Part IV surveys federal laws regarding the ages for arms possession from 1792 until the present. Part V covers nineteenth and early twentieth century state statutes and laws, and also examines the use of history five leading post-Heller federal circuit court cases on age limits for exercising Second Amendment rights. Finally, Part VI describes present-day state laws that limit firearms acquisition or possession by young adults. These laws are considered in the context of age past and present age limits for other activities, such as voting, marriage, and vices. The article finds that there is some historical precedent for extra regulation for handgun acquisition by young adults, and very little for extra restrictions on long gun acquisition. Under Heller, extra regulations for young adults may be permissible, but prohibitions or quasi-prohibitions are not. The Second Amendment rights of young adults include a core right affirmed in Heller: acquiring and keeping a handgun in the home for lawful self-defense.

 

Fairness Towards Authors: Does it Necessarily Mean Caring for the Weak?

Omri Alter ............................................................................ 615

According to a common narrative in recent copyright scholarship, authors deserve fairness in their relationship with commercial entities, such as publishers and producers. This narrative is reflected most conspicuously in a growing trend all over the world to adopt mandatory rules designed to provide authors with a larger share of the profits generated by exploitation of their work.

The most common normative argument in favor of mandatory rules rests on considerations of distributive justice, according to which authors are poor and suffer from low bargaining power. Framing the issue as a conflict between weak, starving authors and large capitalist conglomerates has a broad intuitive appeal; in all likelihood explaining why the issue has been the subject of little critical discussion.

By contrast, this article offers a novel explanation for these mandatory rules in copyright law. Relying on empirical findings from the discipline of social psychology, concerning how individuals judge fairness in the allocation of resources, it argues that society disapproves of the typical transaction between
authors and commercial entities not due to any desire to balance the power differences between the parties; rather this stems from our psychological aversion to certain patterns of profit division.

Accordingly, it claims that mandatory rules in copyright law are arbitrary legislation which should not enjoy the normative importance attributed to caring for the weak.

 

YouTube vs. the Music Industry: Are Online Service Providers Doing Enough to Prevent Piracy?

Karl Borgsmiller ................................................................... 647

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to create a set of rules and procedures online service providers must meet in order to prevent liability from extending to them. 17 U.S.C. § 512(c), dubbed the “safe-harbor provision,” sets out what actions an online service provider must take in order to be free from liability. Recently, this legislation has come under scrutiny because critics argue the safe-harbor provisions over protect online service providers and allow artists to face the consequences of online piracy. This Note argues that instead of reforming the DMCA, new technology and innovation, such as YouTube’s Content ID, should be used to combat online piracy. In addition to new technology and innovation, using anti-piracy techniques such as the “follow the money” approach, as well providing more legitimate forms of streaming, will best protect artists from online piracy.  

 

Building Police-Community Trust in Illinois: Will We Ever Get There? An Examination of the Illinois Police and Community Relations Act

Tosha Childs ......................................................................... 675

The following comment analyzes the 2016 Police and Community Relations Improvement Act. The Act implements the Six Pillars of Change promulgated by President Barack Obama’s Task Force on 21st Century Policing. The pillars represent the best practices to promote effective crime reduction and to build public trust with respect to law enforcement. The pillars are (1) building trust and legitimacy, (2) policy and oversight, (3) technology and social media, (4) community policing and crime reduction, (5) training and education, and (6) officer wellness and safety.

This comment discusses how the Act specifically incorporates the Six Pillars of Change, and it proffers recommendations concerning how the Act could better implement the pillars. In general, this comment avers that the Act contains affirmative provisions consistent with the Task Force’s pillars and constitutes a genuine effort to achieve the Task Force’s goals: police officer reform and building public trust.

 

Great Expectations, Good Intentions, and the Appearance of the Personal Benefit in Insider Trading: Why the Stage Needs Reset After Martoma

Jessica Hostert ...................................................................... 703

When Dirks v. SEC set the stage and the basic script for insider trading based on tipper-tippee liability, it firmly established that a tipper needed to receive a personal benefit or gain for either the tipper or tippee to be held liable for insider trading. Without a personal benefit, there is no breach of duty to the corporation’s shareholders, and, without that breach of fiduciary duty, there is no illegal insider trading. The lower courts subsequently modified the personal benefit requirement, generally weakening the element, and making it easier to find someone guilty of committing insider trading. The Second Circuit’s recent opinions in United States v. Martoma epitomize this trend and have resulted in significant changes to the personal benefit requirement contrary to Dirks. Although both Martoma I and Martoma II purport to use the same stage settings and script established by Dirks, the Second Circuit effectively removed and eliminated Dirks’s personal benefit requirement.

This Note argues that the personal benefit should return to the standard established by Dirks and affirmed by Salman, thereby restoring the personal benefit to the insider trading stage and requiring the Government to prove that a tipper has received a personal benefit in exchange for the disclosure of material nonpublic information. Without adhering to Dirks, courts risk penalizing defendants for merely possessing material nonpublic information or, at the least, based on vague standards that prevent the public from knowing when their conduct is contrary to the law, which is a result consistently rejected by the Supreme Court. Part II of this Note provides the background for illegal insider trading and describes the stage for tipper-tippee liability. Parts III and IV analyze the changes made to the stage, culminating in the removal of the personal benefit in Martoma I and Martoma II, and the consequences of those changes. Part V discusses why returning to the personal benefit requirement as established by Dirks is the most practical solution to resolving some of the problems created by the lower court’s treatment of the personal benefit and who should reset the stage.

 

Raising Your Children and Appeals Right: The Importance of Appeals in Parental Termination Proceedings

Bethany Gale Blitchington ..................................................... 749

The judicial termination of parental rights implicates several constitutional rights, including the parental right to rear one’s child. The Supreme Court of Tennessee has addressed this issue by requiring an appellate review of every ground for termination, regardless of whether it was raised on appeal, in the case of In re Carrington H. (2016). The court based its analysis partially on safeguarding procedural due process. This article examines whether procedural due process under the Fourteenth Amendment requires such an appellate safeguard and discusses what possible alternatives a state might have.

 

From the "Jewish Clause" to the "Homosexual Clause": An Analysis of Beneficiary Restriction Clauses Which Restrict Same-Sex Marriage in Illinois

Julian Valdes......................................................................... 771

This article analyzes the validity of beneficiary restriction clauses in wills aimed at restricting same-sex marriages of the will’s beneficiaries in Illinois. Courts have in the past found some limitations on marriage of beneficiaries to be acceptable and others not under a public policy analysis. Illinois courts, however, have not addressed whether such a clause which restricts its beneficiaries from marrying someone of the same sex is a valid clause under Illinois public policy.

This article addresses the existing scholarship relating to how such an issue could be addressed. After weighing each option, the article proposes a solution for Illinois courts to follow in determining whether such clauses should stand under Illinois public policy.