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Vol 34. No. 3 Spring 2010


The Making of the Supreme Court’s Free Exercise Clause Jurisprudence: Lessons from the Blackmun and Powell Papers in Bowen v. Roy

Paul E. McGreal (469)
Providing keen insight into the evolution of the Supreme Court’s free exercise clause jurisprudence, this Article picks up the behind-the-scenes story as the Court turned from Jensen v. Quaring to the case of Bowen v. Roy. The Article examines the Court’s decision making process in Bowen using unpublished correspondence and draft opinions from the papers of Justices Harry Blackmun and Lewis Powell. These materials show the justices’ concern with a possible slippery slope if religious believers were exempt from generally applicable laws and regulations. That common concern pulled the justices in different directions, fracturing the Court and leaving no majority position. The internal papers, however, show that a majority existed for one approach, but that concerns over justiciability prevented a majority from formally adopting that position. Consequently, Bowen left the Court’s Free Exercise Clause jurisprudence seemingly in disarray and left the Court open to take a new direction in the future.
The Article sets the stage with a brief overview of the Court’s modern Free Exercise Clause cases leading up to Bowen; reviews how the Court substituted Bowen for Jensen in the hope of forming a majority approach to accommodating large, complex government benefit programs to religious objections; and details the Court’s consideration and decision of Bowen. The Article concludes by drawing lessons that the Blackmun and Powell papers teach about Jensen, Bowen, and the Court’s Free Exercise Clause jurisprudence. Articles Editor: Luke Stafford 

Examining the Effects of the Daubert Trilogy on Expert Evidence Practices in Federal Civil Court: An Empirical Analysis

David M. Flores, James T. Richardson and Mara L. Merlino (533)
As the title suggests, this article examines the effects of the Daubert trilogy, a series of cases on expert evidence practices within the federal court system. The authors believe Daubert has placed judges in a “gatekeeper” function, requiring them to determine the scientific validity and admissibility of expert testimony. The other two cases within the trilogy further defined this new function of federal judges. The authors first discuss the background of their research project and the legal history and other studies done in this area. In the next section the authors go into great detail as to the methods of their research and then go on to display their empirical data of the effects of the Daubert trilogy in the form of easy-to-read charts. The charts are followed by a discussion of the results, comparing the federal court system during the pre-Daubert period to the post-Daubert period. Through the use of clearly defined samples one is able to easily see the actual effects the Daubert trilogy has had on the admissibility of expert evidence in federal courts. The reader is left with a better understanding of contemporary expert evidence standards as the authors have discussed their findings within the context of other studies. Articles Editor: Kelsy Austin

At the Brink of Free Agency: Creating the Foundation for the Messersmith-McNally Decision ─ 1968–1975

Ed Edmonds (565)
In this article, Ed Edmonds chronicles the evolution of labor relations in America’s favorite pastime from the first collective bargaining agreement to the arbitration that resulted in free agency for players. Edmonds describes the players’ struggles with the reserve clause, a standard clause contained in all player contracts which allowed a team to retain the rights to a player even after the expiration of his contract. Although a player was not obligated to play for the contracted team, he was not free to enter into a contract with another team. Therefore, a player’s only option was to negotiate a new contract with the same team, ask to be traded or released, or retire. Professor Edmonds discusses the collective bargaining strategies and leverage players utilized to negotiate more advantageous contracts with team owners. This article focuses on how those negotiations led up to the arbitration which ultimately dismantled the reserve clause. Articles Editor: Jennifer Kieffer

In the Weeds: Homeowners Falling Behind On Their Mortgages, Lenders Playing the Foreclosure Game, and Cities Left Paying the Price

Kristin M. Pinkston (621)
As the rate of mortgage foreclosures has risen, the plight of evicted homeowners and the significant financial losses for banks have become common knowledge. Remarkably absent from the discussion, however, has been the extreme hardship placed on municipalities. Municipalities face not only increased crime, neighborhood blighting, and severe public health and safety risks, but also great financial burdens. This economic strain is amplified by what has become a sort of “foreclosure game” for many foreclosing mortgagees. In short, some mortgagees evict homeowners in the midst of foreclosure proceedings, elect not to maintain and repair the subject property, and in some instances simply walk away from the property before foreclosure is complete. While the buildings deteriorate, municipalities face the difficult decision of whether to repair or demolish abandoned homes with limited prospects of repayment or recovery of the accompanying expenses. Lenders likely need not pay because they are not the record owner of the subject property. The true record owner just lost her or his home and is likely not willing, or financially able, to reimburse the municipality. In addition to highlighting the origins of the municipalities’ problems, this article requests local legislative intervention, followed by statewide action, if necessary, to correct the deficiencies present in the current foreclosure system and to insulate municipalities from the resultant burdens. Mortgagors and mortgagees, not the municipality in which they happen to live or do business, should be held responsible for the economic and social costs their decisions create. The current mortgage crisis has undoubtedly exacerbated this problem and, consequently, provides an ideal environment in which to correct it. Articles Editor: Daniel Noll

Dumb and Dumber: Reckless Encouragement to Reckless Wrongdoers

Daniel G. Moriarty (647)
This paper deals with compound negligence, i.e., situations in which one person’s heedlessness helps another to commit a negligent offense. The conviction of the second party who actually commits the offense poses no unique problem; offenses committable through criminal negligence, such as involuntary manslaughter, are routinely available in every jurisdiction. But conviction of the first party who negligently provided the means or opportunity for the second party’s unreasonable behavior poses significant problems. Accomplice liability is unavailable as complicity requires an intention to aid another, a facet which is absent in such cases. Causation might be tried, but the second party’s criminal negligence is apt to be considered an intervening, superseding cause. Reckless Endangerment, an offense pioneered by the Model Penal Code, may well be available in most states (sixty percent), but by no means all, and where available is generally graded as a misdemeanor only, with a maximum prison term of about a year. This paper argues that in many cases such a relatively minor grading is disproportional to the harm committed, such as death or serious physical injury, and proposes a new statute to address the issue. Special problems considered in drafting the proposed statute include the degree of aid that ought to be sufficient for liability, the type and degree of harms that should be covered, and the mens rea that should be required, i.e., in Model Penal Code terms, either recklessness or negligence. Several unfortunate incidents serve as case studies. Articles Editors: Cyndi Bollman and Daniel Noll


Looking Beyond Lopez: Enforcing the Sex Offender Registration and Notification Act Under the Commerce Clause

Laura Barke (703)
The Sex Offender Registration and Notification Act was intended to combat the presence of sex offenders nationwide by providing the public with access to a detailed registry containing each sex offender’s current location. Since its enactment, however, litigants have challenged the constitutionality of the Act on a multitude of grounds. This Comment focuses on whether Congress has the power under the Commerce Clause to criminally punish an offender who travels in interstate commerce and fails to register or update his registry. Although the majority of courts have upheld this provision, their opinions have varied as to the source of Congress’s Commerce Clause power under United States v. Lopez. This Comment argues that the majority of courts have incorrectly validated the provision based on its jurisdictional element alone, when, in fact, the mere presence of a jurisdictional element does not render a statute constitutional under Lopez. Rather, this provision should be analyzed under the Supreme Court’s opinion in Gonzales v. Raich because it is one component of a larger, comprehensive scheme to regulate sex offenders. Therefore, under Raich, the provision is constitutional because it regulates the failure to register, a purely intrastate activity that could effectively undermine Congress’s comprehensive national registry.

Early Retirement Payments Under Tenure and FICA Taxes: Transfer of a Property Right or Just another Payday?

Carson Maricle (727)
The increase of full-time faculty members working past traditional retirement age is causing concern among America's colleges and universities. Due to the current economic situation, universities will continue to induce their older, higher-paid faculty members to retire to reduce costs. Currently, there is a split among circuit courts regarding whether Federal Insurance Contributions Act ("FICA") taxation is applicable to early retirement payments made to induce tenured college faculty to retire. This comment examines the implications of subjecting such early retirement payments to FICA taxation. It explores the background of tenure rights and FICA tax generally as well as the position taken by the IRS and the development of case law. The comment proposes that rather than employing an all-or-nothing approach that produces inherently unfair results, a more favorable threshold approach should be utilized that makes concessions to all those involved. Finally, the comment explains why this approach is the most desirable outcome for both taxpayers and the IRS.


Clarifying ‘King Arthur’s Court:’ Making Sense of the Collateral Source Rule in Illinois After Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008)
Ben Bridges (747)
The collateral source rule holds that a plaintiff’s recovery should not be reduced by any benefits or payments conferred on him by a collateral source. Therefore, a plaintiff’s award cannot be reduced by any payments already conferred on him by, say, an insurance company. Although this rule is straightforward on its face, it becomes increasingly complicated when it involves a plaintiff seeking compensation for medical bills in a tort action. This is so because of the nature of the healthcare payment system in America, whereby insurance companies (and Governmental programs) “settle” bills for a substantially lower amount than the original bill. In such cases, the question becomes, is the plaintiff entitled to the amount originally billed, or only the lesser amount for which his bill was settled? This inquiry is further complicated when the plaintiff’s bills were settled by Medicare/Medicaid or were not paid at all (in the case of gratuitous medical services). In Wills v. Foster, the Illinois Supreme Court attempted to answer this question and reconcile years of inconsistent jurisprudence. While appropriately ruling that the collateral source rule does protect Medicare/Medicaid payments and basing its decision on sufficiently articulated grounds, the Illinois Supreme Court failed to adequately consider the important role played by subrogation rights in the collateral source rule analysis.

Substance Over Form: Refinement of the Unitary Business Doctrine in MeadWestvaco Corp. v. Ill. Dep’t of Revenue, 553 U.S. 16 (2008)
Levi Bennett (773)
The unitary business principle permits a state to tax a percentage of the total income of an out-of-state business operating within the state’s borders, as opposed to only taxing income derived from in-state activities. The goal of the principal is to allow states to tax value created by out-of-state activities that promote the generation of in-state revenue. In order to tax an enterprise under the principle, that enterprise must be a “unitary business.” Courts have traditionally looked for three key factors in determining if a unitary business exists: functional integration, centralization of management, and economies of scale. Many observers had interpreted recent Supreme Court cases on the issue as creating a second test, permitting states to tax an out-of-state business when an in-state asset serves an operational function within the business as opposed to merely being an investment. In MeadWestvaco Corp. v. Illinois Department of Revenue the United States Supreme Court declared that this “operational function” test is not a separate route to taxing out-of-state businesses, requiring states to tax under the unitary business principle. This casenote explores the implications of the Court’s decision and ultimately concludes that MeadWestvaco was correctly decided. While the Supreme Court denies use of the operational function test as a separate ground for taxation, the Court’s use of the test to permit taxation based on an in-state intangible asset suggests that it has a place within the unitary business principal as the test to be applied to such assets. The use of the traditional factors was required in MeadWestvaco because the asset at issue there was a business instead of an intangible asset. This casenote also discusses possibilities for corporate tax avoidance created by the Court’s holding and suggests that a test based on direct connections between the state and the asset to be taxed could prevent such avoidance from occurring