Vol 38. No.3 Spring 2014 | School of Law | SIU

Vol 38. No.3 Spring 2014

ARTICLES

No At-Risk Law Student Left Behind:  The Convergence of Academic Support Pedagogy and Experiential Education 

Starla J. Williams & Iva J. Ferrell ........................................... 375

This Article addresses the urgent need to develop innovative experiential education that takes into account the unique learning needs of both at-risk and underperforming law students.  The authors discuss the anticipated surge of these academically vulnerable law students who are unable to benefit from clinics or externships that law schools offer to higher achieving students.  The authors observe that as the economic downturn in the United States continues to take its toll on law school applications, law schools will admit candidates with lower performance indicators who require more practice-based legal skills training to succeed.  This influx of academically and professionally vulnerable law students creates a conundrum within the legal academy and the practicing bar.  The authors explore the call for law school curricular reform that characterizes the “practice ready” movement and examine proposed revisions to ABA accreditation standards that would mandate experiential courses—despite the reality that many matriculates will earn grades disqualifying them from experiential courses under the current framework.  The authors conclude that these vulnerable law students deserve “equal experiential educational opportunities” with key components of traditional law school academic support pedagogy to become practice ready.

This Article proposes a union of academic support and experiential education to ensure that no at-risk law student will be left behind from the expansion of experiential education.  The Article proposes a simulation course representing the convergence of academic support and experiential education that complies with proposed law school accreditation standards and, further, satisfies appeals to produce a new generation of practice-ready law school graduates.

Unearthing Mansfield’s Rule:  Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition

Andrew J. Hull ........................................................................ 403

Even in the face of blatant jury misconduct that can result in an improper guilty verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place.  Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.

Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury.  Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition.  As argued in this Article, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the juror’s subjective deliberative process of reaching a verdict.

The Misapplication of the Illinois Tort Immunity Act to the Intentional Torts of Police Officers

William Campbell-Bezat .......................................................... 419

According to prevailing state and federal case law, the Illinois Tort Immunity Act immunizes police officers against liability for a variety of tort offenses.  Upper level courts have painted with too broad a brush in construing the Act, allowing defendant-officers to assert immunity as an affirmative defense to intentional torts.  In practice, the effect is both confusing and burdensome to plaintiffs and juries.  In many intentional tort cases the misconstruction requires the unauthorized revision of jury instructions and an unjustified heightening of the mental state to be proved by plaintiffs.

While there are many variations, the prevailing approach of upper-level courts has been to divine a duty for officers to not act recklessly out of the affirmative defense provided by the Act, thereby requiring plaintiffs to prove a heightened “willful and wanton” mental state in addition to the traditional elements of an intentional tort. These constructions ignore existing Illinois statutes providing for officer liability in the case of intentional tort-like offenses and misinterpret the purpose of the Act. Upper-level state and federal courts must address this issue and re-confine the scope of the Act to its original purpose, which was to only immunize officers against liability for ordinary negligence.

COMMENTS

A Bunch of Hot Air:  The Challenges of Regulating Carbon Capture and Sequestration in Illinois

Eric P. Wilber .......................................................................... 441

With mankind contributing to global climate change by emitting carbon dioxide into the air, much focus has been placed on reducing these emissions in energy production.  One important method of reducing carbon emissions in coal-fired power plants is called “carbon capture and sequestration” technology (CCS), which collects the carbon dioxide byproducts of burning coal and injects these gases deep underground.  Two demonstration projects were proposed to use this technology in Central Illinois, called FutureGen 2.0 and Tenaska’s Taylorville Energy Center.

However, both projects have been beset by delays, spiraling costs, and an uncertain regulatory basis, which have created significant problems for the further development of this technology.  This Comment proposes to create a hybrid model of government and private investment for CCS technology, with a streamlined regulatory structure to allow these types of projects to move forward to reduce carbon emissions.

Mark Murfin ............................................................................ 469

The Computer Fraud and Abuse Act is a federal law that governs the crime of computer hacking.  However, it was written in a time before the internet as we know it existed.  Aaron’s Law is the latest proposal aimed at fixing it.  Aaron Schwartz, the law’s namesake, tragically committed suicide while being prosecuted for a violation of this law.  This Comment argues that Aaron’s Law is a good step forward, but not the overhaul this nation deserves.

CASENOTES

Don’t Stop ‘Til the Medical Malpractice Victim Gets Enough:  Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. 2012), and Why Caps on Noneconomic Damages Violate the Right to Trial by Jury in Medical Malpractice Cases 

Bradley A. Bauer ..................................................................... 491

This Note analyzes the decision made by the Missouri Supreme Court in Watts v. Lester E. Cox Medical Centers.  In this case, the Missouri Supreme Court had to determine whether a cap on noneconomic damages in medical malpractice cases provided by Missouri Statute section 538.210 violated the Missouri Constitution’s right to trial by jury.  The majority opinion in Watts declared that the cap on noneconomic damages provided by section 538.210 violated Missouri’s constitutional right to trial by jury.  In doing so, the court reasoned that medical malpractice cases were subject to the right to trial by jury when the Missouri Constitution was adopted.  The court then held that once the right to trial by jury attaches, the plaintiff in a medical malpractice case is entitled to the full benefit of the right and that this right could not be altered by the legislature.  The court then asserted the plaintiff’s right to trial was impermissibly altered by the legislature through section 538.210’s limit on noneconomic damages because the determination of damages was a task that falls solely within the province of the jury.  To limit the amount a plaintiff can recover in noneconomic damages impermissibly took the job of determining the damages away from the jury.

 This Note analyzes the decision in Watts and argues that the Missouri Supreme Court was correct in its holding that the cap on noneconomic damages in medical malpractice cases provided for in section 538.210 violates the Missouri Constitution’s right to trial by jury.  Before analyzing the decision in Watts, this Note explains the history of the right to trial as guaranteed in Article I, Section 22(a) of the Missouri Constitution and analyzes the prior case law on section 538.210, including Adams By and Through Adams v. Children’s Mercy Hospital and Sanders v. Ahmed.  After presenting this background information and the court’s decision in Watts, this Note then argues that the decision in Watts was appropriate, as the cap on noneconomic damages in section 538.210 does violate the right to trial by jury and did not lower medical malpractice insurance premiums as it was designed to do.  Instead, the cap has the effect of discriminating against seriously injured medical malpractice victims.

Ariana E. Calderaro ................................................................ 515

The Illinois Supreme Court decision in People v. Hollins upheld the conviction of a defendant under the Illinois child pornography statute for taking photographs of himself and his seventeen-year-old girlfriend having sexual relations, while another Illinois statute legalizes consensual sex with any person seventeen or older.  This is due to the fact that Illinois considers child pornography as its own distinct historical category of unprotected speech, as recognized by the Supreme Court in United States v. Ferber.  However, after the Supreme Court’s decision in United States v. Stevens, child pornography is arguably not its own distinct historical category, but instead is placed under the category of “speech integral to the commission of a crime.”  The Illinois Supreme Court failed to discuss Stevens and its more narrow approach to interpreting Ferber, which requires the initial question of whether there is specific illegal conduct to which the speech is integral before the content of expression can be restricted.  This Note addresses the court’s failure to apply the Stevens decision to Hollins and the applicability of the First Amendment.  It also questions whether the court’s two rationales under the rational basis review will withstand strict scrutiny.