Vol 41. No. 1 Fall 2016

Articles

Politicizing the Supreme Court 

Vincent J. Samar (1)
The unexpected passing of United States Supreme Court Justice Antonin Scalia left a vacancy on the Court in the midst of a presidential election year.  As a result, the appointment process did not proceed in the same fashion as previous appointments.  Instead, the Senate declared shortly after Justice Scalia’s death that it would not consider any candidate to fill the vacancy until the next president is elected.  The Senate remained steadfast in this decision throughout the remainder of President Obama’s term.

This Article analyzes the constitutional questions surrounding the Senate’s refusal to consider any nominee and argues the Senate has a duty to advise and consent in a timely manner.  Additionally, it demonstrates how a politically-motivated delay threatens the integrity of the constitutional process for selecting judges, violates separation of powers concerns by politicizing the Court, and contradicts the express intent of the Framers of the Constitution.

Textual Rights, Living Immunities 

James Sample (29)
One of the late Justice Scalia’s most lasting imprints on American jurisprudence is his relentless advocacy for the interpretive methodologies of “textualism” in statutory interpretation and “originalism” in constitutional interpretation. Although textualism and originalism are technically distinct methodologies, numerous scholars, in recent decades, have analyzed the many similarities between the two.  Despite these similarities, jurists utilizing these interpretative methods do not always do so uniformly.  In regards to Eleventh Amendment jurisprudence, the United States Supreme Court appears to be abandoning this systematic expectation.  This warrants the question: Is the Supreme Court, especially in the Chief Justice Rehnquist and Chief Justice Roberts eras, applying the interpretive methods of textualism and originalism consistently in cases involving, on the one hand, the delineation of rights and remedies, and on the other, the development of defenses and immunities?

This Article poses the question of whether textualism and originalism are being asymmetrically applied depending on whether rights or immunities are at issue.  If the application of these methodologies is dependent upon the situation, as this Article suggests, what are the larger consequences and implications of that asymmetry?  The recent untimely passing of originalism’s chief progenitor, Justice Antonin Scalia, and the likely specter of three or more new Supreme Court appointees in the next few years, makes these questions critically important both in terms of confirmation hearings, and for determining the legacy of the Roberts Court.

The Need to Look Back for Sales of a Principal Residence

Mark R. Siegal (67)
For nearly five decades, the sale of a principal residence was not a taxable event to the homeowner under the Internal Revenue Code.  The Taxpayer Relief Act of 1997 changed the tax treatment of gain on the sale of a principal residence by repealing the “rollover” rule and amending the one-time exclusion to allow a higher and more frequent exclusion.  This Article analyzes national housing data prepared by the Federal Housing Finance Agency to demonstrate the consequences resulting from these changes, including the disadvantage to homeowners who fared better under the former law.  This Article offers a solution to relieve this tax burden on homeowners by reinstating the rollover rule and giving homeowners the choice to apply the former law.  Restoring the rollover rule through an election will mitigate speculative investing in principal residences and reduce the unequal application of the tax laws resulting from the disparity in housing prices throughout the nation.

Comments

Earth to Congress—The Pharmaceutical Patent System is Broken—Pharma Patents Need Their Own Set of Rules 

Amber N. Sanges (93)
Congress enacted the Hatch-Waxman Act to address rising healthcare costs, while further encouraging pharmaceutical innovation.  The Act allows generic drug manufacturers to bypass the lengthy and costly FDA approval process by relying on FDA approved brand name pharmaceuticals.  As a result, brand name pharmaceutical manufacturers have engaged in certain acts, such as reverse payment settlements, to maintain market control pursuant to their exclusive patent rights.  Therefore, this Act has resulted in a clash between brand name and generic pharmaceutical companies, which is harming consumers and implicating anti-trust concerns.  Accordingly, this Comment proposes that Congress enact legislation, so that pharmaceutical patents—as for design and plant patents—will have their own set of rules to address all the current issues surrounding the pharmaceutical patents.

Come Back With a Warrant: Protecting the Fourth Amendment Rights of Probationers from Warrantless Searches Absent their Consent as a Condition of Probation

Jennifer Lancaster (115)
As prisons become overpopulated, sentencing alternatives, such as probation, are becoming more common throughout the United States.  The increase in probationers has created new issues for courts to decide.  One of the most prevalent issues is the consent to warrantless searches by probationers.  As a requirement of probation, probationers must follow a set of conditions.  This Comment explains whether the “reasonableness standard” should apply if a probationer has not consented to warrantless searches as a condition of probation.  

This Comment discusses the circuit split between the Eleventh and Fourth Circuits on the issue of warrantless searches.  The Eleventh Circuit allows for warrantless searches based on minimal suspicion, even if the probationer has not consented to warrantless searches as a condition of probation.  Alternatively, the Fourth Circuit requires probable cause to conduct a search, if the probationer has not expressly consented to a condition of warrantless searches.  This Comment argues that if the Supreme Court grants certiorari to resolve the split, it should be decided in favor of the Fourth Circuit’s reasoning to protect the Fourth Amendment rights of probationers from unreasonable searches and seizures.

Casenotes

Who is Responsible When Someone Commits Suicide? An Examination of Turcios V. Debruler Co., 2015 IL 117962, 32 N.E. 3d 1117

Kelly A. Meredith (137)
When a person takes his own life, grieving loved ones often try to understand why.  Sometimes they blame themselves or the decedent’s mental health; in other situations, they may blame another person when circumstances suggest the decedent was pushed to commit suicide.  Interesting legal issues arise when a decedent’s family tries to hold a person legally liable for causing his suicide.  The Illinois Supreme Court faced these issues in Turcios v. DeBruler.

Illinois and other jurisdictions have traditionally held that an individual’s suicide is an unforeseeable, intervening cause.  This precludes plaintiffs from maintaining wrongful death actions against tortfeasors for negligently causing a suicide.  Most courts depart from this rule when a tortfeasor intentionally commits a tort that results in a victims’ suicide.  Instead, these jurisdictions employ a less rigorous causation analysis to establish liability if the tortfeasor’s intentional conduct is a substantial factor in bringing about the suicide.  In Turcios v. DeBruler, the Illinois Supreme Court departs from this trend in favor of a demanding causation analysis that insulates intentional tortfeasors from liability for causing a suicide.  This Note argues the Illinois Supreme Court incorrectly limited intentional tortfeasors’ liability to foreseeable consequences.  By doing so, the court created a standard that fails to distinguish between intentionally injuring a victim, thereby causing his suicide, and negligently doing so.  As a result, the court’s holding has the predominant effect of denying wrongful death claims predicated on suicide in cases worthy of justice. 

We the People: Analyzing the 7th Circuit’s Decision in United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015)

Jennifer Paulson (163)
Following District of Columbia v. Heller and McDonald v. City of Chicago, Second Amendment jurisprudence drastically expanded as individuals began challenging state and federal regulations that burden the right to keep and bear arms.  In United States v. Meza-Rodriguez, the Seventh Circuit faced a particularly controversial issue when an undocumented immigrant challenged a federal statute that categorically banned undocumented immigrants from exercising Second Amendment rights.  Although several other circuits had analyzed the same issue, the Seventh Circuit was the first to hold that undocumented immigrants have Second Amendment rights.  However, the court also upheld the constitutionality of the categorical ban, reasoning that it furthers Congress’ goal of keeping guns out of the hands of “presumptively risky people.”  This Note argues that the Seventh Circuit created a constitutional anomaly by recognizing the Second Amendment rights of undocumented immigrants while simultaneously upholding a statute which categorically bans undocumented immigrants from exercising those rights.