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Vol 37. No.2 Winter 2013


Lawyering Outside the Box: Confronting the Creativity Crisis

Samantha A. Moppett (253)
The Great Recession was not only a defining moment in world history and for the United States economy; it was also a turning point for the legal profession.  The economic downturn resulted in a long-term structural adjustment in the legal services market that will adversely impact the legal profession permanently.  Accordingly, lawyers need to be creative in adapting to the changing realities of law practice.

Yet, despite the need for creative approaches to address the changing legal landscape, a disturbing phenomenon was recently identified: creativity in the United States is declining.  Moreover, legal education and the legal practice impose barriers to the development of creative potential.  This Article argues that in light of the changes to the legal profession caused by the economic downturn, the legal practice—legal educators and practitioners alike—should strive to foster creativity so that lawyers can generate the novel, concrete solutions to the pressing issues facing the legal practice today.

A Matter of Interest: Illinois Courts Should Return to the Traditional Rule for Awarding Prejudgment Interest in Insurance Coverage Cases

Stanley C. Nardoni (305)
Without acknowledging their departure from precedent, Illinois Appellate Court decisions have recently shifted from treating prejudgment interest as a matter of right for money owed under insurance policies to something within trial court discretion.  This shift is unwelcome for several reasons.  First, it contravenes the terms of Illinois’ Interest Act, which says creditors “shall be allowed to receive” prejudgment interest for “all” moneys due on any “instrument of writing.”   It also frustrates that statute’s purpose of compensating for the time value of money owed under written contracts.  Further, it is in conflict with Illinois Supreme Court decisions that have applied the traditional matter of right approach.  Finally, it promotes inconsistent outcomes because the decisions espousing it have stated no rules to guide a trial judge in exercising discretion.  Illinois courts should return to the traditional rule of viewing prejudgment interest as a matter of right in insurance cases.

Revisiting Colorado v. Connelly: The Problem of False Confessions in the Twenty-First Century

Daniel Harkins (319)
This Article analyzes how the current constitutional test formatted in Colorado v. Connelly no longer sufficiently excludes unreliable confessions from being admitted into evidence at trial.  In the last twenty years, a multitude of psychological studies have demonstrated that people confess to crimes they did not commit for a range of reasons wider than what is recognized by the Connelly inquiry.  This Article analyzes this phenomenon and examines potential methods (both inside and outside the constitutional standard) for preventing these confessions from reaching juries at trial.

The Second Amendment’s Fixed Meaning and Multiple Purposes

Thiago Luiz Blundi Sturzenegger (337)
Being faithful to the Constitution’s textual meaning may provide the interpreter with the ability to perceive the adaptability of a constitutional provision to different social and political contexts.  The text of the Constitution refers to principles of law, principles that are indispensable in different ways throughout time.  Textualism as a constitutional interpretation model may offer the path to a more versatile Constitution.

To support this statement, this Article examines the cases in which the Supreme Court interpreted the Second Amendment to the Constitution.  The focal point is the use of history and historic research in constitutional adjudication.  The main argument is that the adoption of the textualist stream of originalism by the Court has enabled it to understand how the right to keep and bear arms has been crucial in different ways and in different contexts throughout American history.


The Role of Government in Energy Markets: A Look at the Market-Based Rates Process, the FERC, and the Future of Energy Markets in America

Andrew Laquet (395)
It is often argued that markets can solve anything, and market-based policies have steadily crept into many of the policies that affect our everyday lives, especially when it comes to energy regulation.  For years, the Federal Energy Regulatory Commission (FERC) has increasingly used a market-based rates strategy to spur investment in energy infrastructure.

However, market-based rate policies have been wholly inadequate to spur this investment in infrastructure, particularly in transmission infrastructure and promoting efficiency, and alternative approaches should be used to accomplish these goals.  This Comment will take a look at the history and theoretical underpinnings of market-based rates before explaining the necessary market tests necessary for authorized use of market-based rates by utilities, as well as the future of FERC following Montana Consumer Counsel v. Federal Energy Regulatory Commission.  This Comment will then show how market-based rates strategies have fallen short of their stated goals and argue that a more efficient way to spur investment in infrastructure is (1) to return to a vertically integrated model of energy transmission, (2) permit utility-only ownership of power generating holdings, and (3) achieve significant government investment in energy transmission infrastructure.

The Seedy Underbelly of Joinder and Reverse Class Actions: The Porn Industry’s Crusade Against Digital Piracy and Its Interplay with Rule 11 Sanctions

Eric D. Block (419)
Since the fall of Napster, litigation involving the illegal downloading of copyrighted materials has become common.  More recently, the adult film industry has joined the fight against illegal downloads.  Unlike the music and film industries that came before it, the adult film industry’s pursuit of litigation presents a number of difficult problems that involve the balancing of the industry’s interest in protecting their copyrighted materials with the possibility of innocent defendants being shamed into settlements due to the embarrassing nature of the suits. This Comment looks to strike this balance through the use of Rule 11 sanctions as a catalyst to change, with the end result being a process utilizing the Judicial Panel on Multidistrict Litigation.


God Save the United States and This Honorable Court: Navigating Through the Marsh AfterJoyner v. Forsyth County, North Carolina, 653 F.3d 341 (4th Cir. 2011)

Brian D. Lee (441)
In Marsh v. Chambers, the Supreme Court held that legislative prayer was not unconstitutional per se, due mostly to the fact that prayer during legislative sessions was commonplace when the Establishment Clause of the United States Constitution was adopted and ratified.  However, the Marsh Court realized that not all forms of legislative prayer were constitutional and held that such prayers violated the Establishment Clause if they advanced, disparaged, or proselytized a particular religion. Although the prayers at issue in Marsh did not contain sectarian references—references to tenets of a particular religion—the Court did not rely solely on that fact in upholding the prayer policy at issue.

Recent decisions from the United States Court of Appeals for the Fourth Circuit have misapplied Marsh’s holding in determining that any legislative prayer containing sectarian references is a violation of the Establishment Clause because it advances a particular religion.  Specifically, in Joyner v. Forsyth County, North Carolina, the Fourth Circuit held that a legislative prayer policy was unconstitutional solely because most of the prayers given contained brief references to Jesus Christ, despite the fact that the policy contained several procedural safeguards to ensure that no one could exploit it for an improper purpose.  This Note argues that courts should conduct a holistic examination of legislative prayer policies, taking into account the identities of the prayer-givers, the method by which they are chosen, the purpose of the policy, and the content of the prayers, when determining whether those policies violate the Constitution.  This holistic examination will enable courts to better determine when prayer policies violate the test established in Marsh, and its adoption will ensure that courts set proper boundaries on the right to begin legislative sessions with prayer.

Silencing the Rebel Yell: Exceptions to the First Amendment After Defoe ex rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010)

Alexandra Brown (465)
One of the central tenets of the First Amendment is the freedom of speech.  However, the Supreme Court has consistently held the First Amendment does not provide the same protections for minors’ speech in public school as it does for adult speech.  Recently, the Sixth Circuit further limited the protections provided to student speech in Defoe ex rel. Defoe v. Spiva.  This Note examines the decision in Defoe ex rel. Defoe v. Spiva and argues that the decision was incorrect because it deviated from long-standing Supreme Court precedent and erroneously created a new standard that was left undefined. This Note also considers the dangerous repercussions that may flow from the Sixth Circuit’s decision.