Vol 36. No.2 Winter 2012 | School of Law | SIU

Vol 36. No.2 Winter 2012

ARTICLES

Non-attorney Social Security Disability Representatives and the Unauthorized Practice of Law

Drew A. Swank (223)
The label “non-attorney representative” is an oxymoron.  Attorneys—members of state bars who have specialized training in the law—represent people; laypersons who attempt to do so can be charged in most states with a misdemeanor or felony offense.  And yet before federal administrative agencies, it is a common, everyday occurrence.  This article not only explores why that is, but more importantly examines the consequences for both individuals and our federal administrative justice system.  Focusing on the Social Security Administration, this article examines how the agency has failed to implement the safeguards other agencies have to ensure the competency and ethics of non-attorneys who represent individuals before it.  This failure of the agency has negative consequences for the individuals represented, the taxpayer, and most of all, the disabled.

Training Tomorrow’s Lawyers: What Empirical Research Can Tell Us About the Effect of Law School Pedagogy on Law Student Learning Styles

Eric A. DeGroff (251)
Generations X and Y, which together account for the vast majority of today’s law school classes, are quite unlike previous generations in their approach to learning.  Legal scholars have begun to note the disparity between the learning styles and thought processes of today’s students and many of their professors, and some have suggested that a more experiential pedagogy might enhance the learning process for many of today’s students.  Unfortunately, the academy has little empirical data to evaluate what kind of difference a more experiential approach would make. The research described in this article was designed to help bridge that gap by adding to the modest, but growing, body of data linking pedagogical approaches with learning outcomes.  Specifically, the article presents the results of a longitudinal assessment of learning styles over the course of the first year of law school.  Findings from this research demonstrate a significant shift in learning styles over the course of the first year of study, and—while less conclusive—also suggest that an experiential approach in the classroom may impact student learning in a positive way.

Reinvigorating the 1L Curriculum: Sequenced “Writing Across the Curriculum” Assignments as the Foundation for Producing Practice-Ready Law Graduates

Suzanne J. Schmitz and Alice M. Noble-Allgire (287)
Study after study lists written legal analysis as one of the most critical skills of a lawyer; yet it is often under-developed in the traditional law school curriculum.  This article describes an integrative, sequenced “Writing Across the Curriculum” (WAC) program to help first-year law students master legal analysis and writing by systematically developing these skills though writing assignments in doctrinal courses, thereby enhancing the instruction that students receive in the Lawyering Skills course. The article discusses the key components of the program—writing assignments sequenced to build skills incrementally from simple to complex; prompt and consistent feedback based upon a competency model; and transparency in setting forth the professor’s expectations, both in advance of the exercise and in the feedback—and assesses some of the benefits and challenges of adopting such a program.

Reframing the Mediation Lens:  The Call for a Situational Style of Mediation

Tanya M. Marcum, Charles R. Stoner, and Sandra J. Perry (317)
Child custody mediation can have a positive impact on the parties involved in mediation as well as on the process of settlement itself.  The process of mediation focuses the parties on the needs of the children and helps the parents to be realistic in their expectations regarding custody and visitation of the children.  Mediators realize the importance of listening carefully to the parties involved in the custody dispute.  This article looks at three distinct groups of mediators involved in child custody mediation in the state of Illinois, the mediators perceived mediation styles, and their actual mediation styles.  As a result, a four-step framework for successful mediation was identified.  Mediators must be able to read the situational context of the mediation and make adaptations accordingly.

Respondents in Discovery: A Beneficent Statute with Traps for the Unwary

John T. Hundley (335)
A variety of factors have converged to thwart the beneficent purposes of the Illinois Respondents in Discovery Statute (now 735 Ill. Comp. Stat. 5/2-402 (2010)) and to create hidden dangers for the unwary who rely upon it.  This article explains the Statute and its history, and sheds light on the hidden dangers the Statute poses. 

COMMENTS

Act Like a Lady!: Reconsidering Gender Stereotypes & the Exclusion of Women from Combat in Light of Challenges to “Don’t Ask, Don’t Tell”

Angela Rollins (355)
Today, women are serving in the military in increasingly larger numbers and in greater capacities.  However, despite women’s hard work and commitment to our nation, women are prohibited from combat positions, and top leadership positions in the military are foreclosed.   Thus, our military women, and women in the rest of society, must live with the constant reminder that they are not quite as good as their male counterparts.  Accordingly, this exclusion has a harmful impact by reinforcing the perception women’s inferiority in society. This comment argues that the legal and social bases for excluding women from military positions have changed and should be reconsidered in light of the recent Supreme Court decisions that give less deference to military decisions, changing gender jurisprudence, and repeal of the military’s “Don’t Ask, Don’t Tell” policy.  Finally, this comment suggests ways in which the military’s exclusion of women may be challenged, including legislation, change in military policy, and constitutional challenges.  However, the underlying reason for the discrimination against both women and homosexuals in the military is the social construction of the military as a masculine organization.  Women and homosexuals, both generally constructed as non-masculine, both detract from that masculine ideal.  Accordingly, the solution on a larger scale is by challenging these stereotypes.

Who’s Following You?: The Federal Trade Commission’s Proposed “Do Not Track” Framework and Online Behavioral Advertising

Timothy Shrake (383)
The rapid growth and use of the internet has changed society and raised important questions.  One such question concerns online behavioral advertising, which refers to the practice of following an individual's actions on an internet capable device and tailoring advertisements based on that individual’s internet actions.  The main issues in this comment are whether the government should regulate online behavioral advertising and whether consumers have the right to limit the tracking of their online actions.  This comment specially examines the practice of online behavioral advertising and the Federal Trade Commission's proposal, Protecting Consumer Privacy in an Era of Rapid Change, which advocates a simple consumer mechanism to limit online behavioral advertising—‘Do Not Track.'  The comment goes on to analyze that whether the government decides to take action and regulate online behavioral advertising, or whether a robust self-regulatory framework is set up, any type of anti-tracking mechanism such as 'Do Not Track' must be (1) unique and prominent so that people do not merely skim over it; (2) simple so that the average internet user may understand its purpose and make an informed choice; and (3) enforceable so that individual companies do not abuse consumers’ wishes and consequently gain a slight advantage relative to other competing companies.  Finally, the comment considers the realities of regulation while taking into account an individual's privacy expectations. 

CASENOTES

Use It or Lose It:  Municipal Takings of School District Property in Village of Woodbridge v. Bd. of Educ., 933 N.E.2d 392 (Ill. App. Ct. 2010)

Charles McGuire (405)
Disputes between agencies of state government invariably consume taxpayer dollars and should be avoided whenever practicable.  The Illinois legislature contains two sources of authority for municipalities to take—via eminent      domain—real property belonging to other public entities.  This casenote posits that the legislative scheme governing taking of real property by one public entity from another public entity should be streamlined and clarified in order to prevent public agencies from expending vital human and economic resources litigating the propriety of such takings.  The current statutory scheme governing the taking of real property, by one public agency from another, unnecessarily places both agencies at odds with each other to the ultimate detriment of Illinois taxpayers.

Not Innocent Enough: The Denial of a Certificate of Innocence Based on Neglect in United States v. Graham, 608 F.3d 164 (4th Cir. 2010)

Amy Oxley (425)
A certificate of innocence is sometimes needed when a wrongfully convicted individual sues the federal government for damages.  This casenote discusses the Fourth Circuit’s denial of a certificate of innocence for the petitioner in United States v. Graham.  The Fourth Circuit found that the petitioner, whose embezzlement conviction had previously been overturned, was not entitled to a certificate of innocence because his prosecution was caused by his own misconduct or neglect, which is one prong under 28 U.S.C. Section 2513 that can prohibit a certificate of innocence from being issued.  In its decision, the Fourth Circuit specifically rejected the Seventh Circuit’s interpretation of this misconduct or neglect prong, which prohibited courts from assessing the virtue of the petitioner’s behavior, even in cases where the behavior did not amount to a criminal offense.  This casenote argues that the Fourth Circuit incorrectly decided Graham by creating new precedent that will allow judges to make moral assessments of a petitioner’s noncriminal behavior when determining whether the petitioner’s misconduct or neglect led to his prosecution.