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Vol 37. No.1 Fall 2012


Legitimacy, Innovation, and Harmonization: Precursors to Operationalizing Biofuels Sustainability Standards

Jody M. Endres (1)
How to balance land uses to sustainably feed, clothe, and power a burgeoning population aspiring to western lifestyles will be a profound, if not the most profound, challenge to policymakers in the 21st century.  And, climate change’s unpredictable effects on natural systems will exacerbate already complex, uncertain, and contentious land use decision-making.  While biomass-based energy policies gained momentum throughout the 2000s as one way to reduce greenhouse gas emissions, assumptions about biofuels’ environmental and societal benefits are beginning to come under closer scrutiny.  In response, public laws have incorporated varying forms of sustainability considerations.  Many private standards have emerged, however, to fill real and perceived gaps in, or in some cases anticipate, future regulatory requirements demanding increased sustainability.

Aspirations aside, the critical question moving forward will be how to operationalizesustainability regimes to address governmental and societal concerns.  Agricultural biomass sustainability regimes represent a particularly ground-breaking paradigm shift within a traditional commodity-crop landscape that historically has not been subject to widespread certification to specialized sustainability metrics.  Although certification is not new to the forestry sector, energy biomass presents unique questions surrounding increased harvests, novel species and practices, and complex carbon accounting.  With these new landscape dynamics in mind and assuming regulatory drivers will encourage operators to seek certification, I posit that private and public actors must successfully navigate three preconditions of operationalization in order to ultimately achieve the sustainability goals contained in any sustainability standard: (1) ensuring standards organizations are built on good governance principles;  (2) shifting the paradigm within conventional agricultural landscapes to enable technological and institutional innovations for increased sustainability; and (3) standards harmonization to facilitate international markets.  I conclude that each goal, in and of itself, presents great challenges at all levels in transitioning from theoretical to operational standards.

Perils and Pontifications: Reflections on the Failures and Joys of a Law Teacher

John W. Teeter, Jr. (53)
In this Article, John Teeter reexamines his life as a law teacher and engages in uncommonly pungent self-criticism that he hopes will prove insightful for other professors and those pondering a career in academics.  By reassessing critical decisions he made as a student, a lawyer, and a teacher, Teeter reveals how he repeatedly undermined both his interpersonal aspirations and professional potential.  Such failures have given rise to their own solace and peculiar wisdom, however, and Teeter also explicates the joy he derives from teaching and offers ideas on how others can enhance their fulfillment and success in the academy.

Legal Tolerance Towards the Business Lie and the Puffery Defense: The Questionable Assumptions of Contract Law

M. Neil Browne, Kathleen M.S. Hale & Maureen Cosgrove (69)
American contract law is supposed to facilitate the efficiency and fairness of market transactions between parties.  Does the increasing success of the puffery defense in false advertising and securities cases further the fairness of transactions between companies with major advertising budgets and consumers?  This Article contends that it does not.

In assessing the validity of a market transaction, American contract law assumes that transparency exists between the parties.  But because of courts’ willingness to accept the puffery defense, companies have significant ability to lessen the transparency.  Puffing about products or services, such as claims that a product is the best in the world or America’s favorite, leaves consumers in the dark about the true attributes and qualities of advertised products or services.  When courts honor the puffing defense, they thereby leave consumers unprotected and lacking a remedy for harm suffered from reliance on the puffing.  Paradoxically, the puffery defense succeeds when a company’s boasts about its products or services cannot be proven true.

This Article urges a reexamination of the assumptions underlying the puffery defense and the disparate treatment of dishonesty in the commercial and personal contexts.  Such a reexamination is needed now more than ever, as courts may become increasingly willing to assume (mistakenly) that expanded access to information renders consumers savvy enough to disregard commercial puffery.

Practitioner’s Guide to the Voluntary Payment Doctrine

Colin E. Flora (91)
In the two centuries since its inception, the voluntary payment doctrine has become a powerful instrument for defendants to resist the repayment of money not rightfully owed.  This Article examines the origins, evolution, modern application, and approaches to defeat the application of the doctrine.  The Article aspires to provide practitioners with the tools necessary to navigate their clients’ cases through the treacherous waters of the voluntary payment doctrine by seeing how the doctrine is applied throughout the many American jurisdictions, the underlying rationales, and the ways that litigants have been able to defeat its application.  The Article also includes tables to act as reference points for busy practitioners.

Burdens of Proof and Qualified Immunity

Kenneth Duvall (135)
Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation.  This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. 

In Part II, this Article briefly explains the burdens of proof, the nature of § 1983 actions, and the difference between affirmative defenses and immunities.  Part III surveys jurisdictions across the country to determine how they allocate the burdens of proof for the two defenses asserted by government officials sued under § 1983: the good-faith and probable cause defense and qualified immunity.  Part IV then analyzes the evolution of the good-faith and probable cause defense into modern-day qualified immunity, thus presenting a single, unified defense.  This Part concludes that, after a circumspect reading of modern Supreme Court precedent, the burdens of proof for the various qualified immunity elements are set: two burdens are on the defendant, one burden is on the plaintiff, and one burden is unallocated.  Finally, Part V will determine that, based on policy considerations, the defendant should bear all of the burdens of proof in the qualified immunity inquiry. 


Draining the Serbonian Bog: Originalism and the Need for Temporary Takings by Floodwaters

Brian Lee (169)
In May 2011, approximately 130,000 acres of Missouri farmland were flooded when the United States Army Corps of Engineers crevassed the levee protecting that land from the waters of the Mississippi River.  The owners of these lands, however, were unable to obtain compensation from the federal government pursuant to the Takings Clause of the United States Constitution because the flooding was not permanent or certain to recur.  This treatment of temporary floodwaters is in stark contrast to the takings analysis conducted when other temporary government actions are examined.

This Comment argues that temporary flooding should be treated exactly as other temporary government actions when courts determine whether government action constitutes a taking of private property.  This conclusion is based on an examination of the standard under which floodwater takings claims are currently analyzed and the unpersuasive rationales for disallowing compensation for temporary flooding.  However, this Comment, after examining the original intent and original meaning of the Takings Clause and the judicial creation of regulatory takings, also argues that this needed change in takings jurisprudence should not be extended to compensate property owners whose land might flood in the future due to government action.  Finally, this Comment provides an example to demonstrate how a court should conduct the analysis of a takings claim based on temporary flooding.

Use of the Family Limited Partnership to Protect Illinois Family Farms During a Period of Uncertainty: Proceed with Caution

Jason Hortenstine (195)
This Comment examines the use of the family limited partnership as an estate planning device and provides guidance for its use in light of recent precedent with regard to qualifying a transfer as a present interest.  First, this Comment reviews the complications associated with the transfer of family farms, including the federal estate tax uncertainty and the Illinois estate tax’s lack of uniformity.  Second, it reviews the complications associated with current asset protection of family farms.  Subsequently, it analyzes the use of the family limited partnership, including the historical benefits and the evolution and current uncertainty of the doctrine after Fisher and Price.  Then, it provides future guidance for its use.  Future guidance includes post-Fisher and -Price guidelines for qualifying for the annual gift tax exclusion and general guidelines to avoid IRS challenges.


Classing Up the Re-litigation Exception?: Federalism, Injunctions, and Class Actions in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011)

Mallori Allen (219)
In Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), the Supreme Court held the United States District Court for the District of Minnesota misapplied the re-litigation exception to the Anti-Injunction Act when the district court enjoined the West Virginia state court from considering the class certification issue presented in Smith’s case.  While the Class Action Fairness Act of 2005 (CAFA) had recently been passed, the class action reform was not enacted in time to affect this case.  Nevertheless, Smith provides security to some state court class actions in a post-CAFA atmosphere where state jurisdiction over class actions seems severely limited.  This Note will argue that Smith was decided correctly, appropriately limiting federal courts’ ability to issue injunctions against state courts poised to consider certifying classes with similar issues to classes denied in federal courts.

Broke: The Pocketbook of Illinois and the Single Subject Rule After Wirtz v. Quinn, 953 N.E.2d 899 (Ill. 2011)

Eric Block (237)
State courts have wrestled with the single subject rule for over a century and a half.  A workable legal standard for this rule has been elusive, however.  A recent Illinois case addressing a controversial piece of legislation illustrates just how evasive the application of this rule can be.  In Wirtz v. Quinn, the Illinois Supreme Court upheld a state “stimulus” package, which addressed topics ranging from candy taxes to video gaming in its nearly three hundred pages, because it felt that the bill fell under the subject of “capital projects.”  In addition to introducing a new “smoking gun” requirement, Wirtz shows just how far a court will go in upholding legislation.  This Note examines Wirtz, as well as prior single subject rule jurisprudence, and concludes that this ancient rule has modern applicability.  By refocusing the rule on political accountability, the single subject rule can become a tool to promote political transparency in the wake of the Tea Party and Occupy Wall Street movements, both of which call for such transparency.