Vol 46. No. 2 Winter 2022 | School of Law | SIU

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Vol 46. No. 2 Winter 2022

ARTICLES

“The Sky is Falling, The Sky is Falling”: Why Inciting Mass Psychological Panics Should Trigger Legal Liability

Jason P. Kight & David Scott ................................................................................ 219

With a twenty four hour, seven days a week news cycle and social media leaders, activists and other groups have more access to the public than ever before. This access can lead to events known as mass psychological panics that can have devastating outcomes. In this paper two main cases were examined: Harold Camping and his religious zeal that led to a mass psychological panic, and QAnon which led to the storming of the US Capitol in January of 2021. This paper posits that there should be a federal statute criminalizing incitement via social media. 

For Whom “Bell” Tolls: Rent Escrow, Withholdings, Strikes, and Landlord-Tenant Reform

Brian G. Gilmore............................................................................................. 243

Rent is the key obligation for tenants in a landlord-tenant relationship. What happens when the obligation to pay rent is challenged by the tenant due to the landlord's failure to meet their own obligations in that relationship? In that respect, can a tenant withhold rent (escrow their rent) legally under the law and force a judicial determination on not just the rent payments but the landlord's failures? Using a 1968 case known as Bell v. Tsintolas as a starting point, this article examines the concept of rent escrow, its evolution, and the various forms it takes in landlord-tenant relationships. This article also considers the advantages and disadvantages of rent escrow to tenants and considers the best path forward for rent escrow in successful and more equitable landlord-tenant relationships. 

The Paid Act: Providing Much Needed Information to Resolve Injury Claims Brought by Medicare Beneficiaries

Sean P. Sheehan & Samra Cordic ......................................................................................................................... 281

Laws governing Medicare have undergone tremendous change since the program was first implemented in 1965, one of the most significant of which was the 1980 Medicare Secondary Payer (“MSP”) statute. Pursuant to MSP, any entity that is also responsible for the cost of a beneficiary’s medical care must reimburse Medicare for any of these expenses. However, as Congress expanded Medicare to include Parts C and D between 1997 and 2003, identifying claims that were the responsibility of third parties became increasingly difficult as these two parts were provided and administered by private insurers.

To address inadequate reimbursing of MSP claims, in 2007 Congress passed the Medicare, Medicaid, and SCHIP Extension Act, requiring parties settling or paying personal injury claims of Medicare beneficiaries to report the settlement or payment to the Centers for Medicare and Medicaid Services (“CMS”). In theory, CMS could then use this information as a check and balance to ensure proper reimbursement by primary payers. However, because secondary payers were often not sure if a party receiving benefits was enrolled in Medicare, Congress passed the Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers (“SMART”) Act in 2012. This statute created a query system whereby parties could determine the Medicare enrollment status of a claimant to facilitate reimbursing Medicare when required. While these two statutes were intended to clarify and streamline MSP claims processing, an ongoing concern was that the query system established by the SMART Act did not allow queries into Medicare Part C or D enrollment.

The lack of functionality allowing Part C and D queries, coupled with significant penalties for failure to comply with MSP reimbursement rules resulted in an imperfect system where those settling or paying personal injury settlements of Medicare beneficiaries were at risk for penalties even when they attempted to comply with the law. The uncertainty of obligations led to enactment of the Provide Accurate Information Directly (“PAID”) Act on December 11, 2020. The goal of the PAID Act is to increase transparency and certainty for parties to determine their secondary payer reimbursement and reporting obligations. This article delves into the statutory and case law history creating these obligations while describing the limitations that necessitated the PAID Act’s passage as well as the path the Act followed to enactment.  

NOTES 

 

Your Marriage Didn’t Last, but Your Obligations Will: Why Nuptial Agreements Should be Enforceable Against Sponsored Immigrant Spouses Under the Affidavit of Support

Samantha Earls....................................................................................................... 291

Sponsoring an immigrant spouse to come to the United States can be a labyrinthine task. Sponsorship requires completion of Form I-864, creating a binding contract between the sponsoring spouse and the U.S. government with the sponsored immigrant spouse as a third party beneficiary. Under this contract, the sponsor agrees to financially support the immigrant spouse, and both the U.S. government and the sponsored spouse have a contractual right to sue the sponsor for enforcement of this financial obligation.

Current case law further convolutes the issue, holding that nuptial agreements between U.S. citizen spouses and sponsored immigrants are unenforceable when an immigrant seeks financial reimbursement under Form I-864. This Note addresses the discordance between the current case law and common law contract principles and identifies the congressional purposes behind several immigration statutes. This Note proposes a change to the current enforcement of Form I-864 that would permit immigrants to waive their third party rights through valid nuptial agreements. Enforcing these waivers fulfills multiple statutory purposes and satisfies both immigration and contract law principles harmoniously.   

Death with Dignity: Terminally Ill(Inois)

Nathan T. Levy ............................................................................................... 321

Since the turn of the century, ten jurisdictions have followed Oregon’s lead by legalizing medical aid in dying. Illinois is not one of those jurisdictions. This Note argues that Illinois would benefit from permitting its terminally ill patients access medical aid in dying. This Note suggests the end-of-life decision making ability currently available to Illinois’ terminally ill patients is not sufficient to relieve the patients of the potential for conscious end-of-life suffering, loss of autonomy, and loss of dignity. Furthermore, the aging “Baby Boomer” generation, the insufficiency of end-of-life care, and physician compliance exacerbate the need for legalized medical aid in dying in Illinois. The author discusses legalization through the Illinois judiciary and Illinois’ General Assembly, and which path is better suited for accomplishing legalization. In the end, this Note concludes that legislation is likely the best path and proposes the introduction of an Oregon Death with Dignity-like bill with additional specific safeguards.

Citizens Without Representation: Hypocrisy in the United States’ Caribbean

Andrew P. Remeselnik ............................................................................................... 353

The right to vote in federal representation is a fundamental aspect of the United States’ democracy, but for some citizens, the right to meaningful federal representation is inaccessible. The legal relationship between the federal government and territorial residents have been skewed by archaic categorization and Congressional inaction. This Note analyzes the legal history of the representation of the residents of Puerto Rico and the United States Virgin Islands and proposes to extend the fundamental right to vote to the territorial citizens of the United States.

Crazy Story: Admission of Guilt or Braggadocio? Defendant-Authored Drill Lyrics as Evidence in Trials

Hugh Toner IV ............................................................................................... 377

Rap music is a legitimate, commercially successful industry, which provides opportunities to amass or achieve wealth. Drill rap, is an internationally popular sub-genre originating from the streets of Chicago in the early 2010s. It addresses some common themes or issues seen before in previous rap songs. However, it focuses nearly exclusively on violence, crime, guns, and drugs. Furthermore, it does so in a nihilistic manner. In fact, international drill artists often wear masks to avoid being targeted. For this reason, it is easily susceptible to being misinterpreted as reality—especially on serious matters such as life, liberty, and the criminal justice system. It’s a tale as old as time, a person sees what they want to see and hears what they want to hear. Especially when you’re told what something means.

Implicit bias is in all of us. It is the invisible influence which shapes the way people receive and process information. While it is not necessarily a bad thing on its own, one must be cognizant of it to ensure that they are not falling victim to it. Given the potential harm defendant-artists face given the controversial nature of the lyrics, especially, when under criminal trial it is important to handle this “evidence” within its proper weight. It also provides necessary background on implicit bias and argues that the purpose of evidence may be better served not hearing this evidence. This note addresses how courts should handle defendant-authored drill rap to ensure that people are tried for their actions rather than their lyrics.