Vol 39. No.2 Winter 2015 | School of Law | SIU

Vol 39. No.2 Winter 2015

 ARTICLES

Reanimating the States’ Single Subject Jurisprudence: A New Constitutional Test

Justin W. Evans & Mark C. Bannister...................................... 163

Most states’ courts do not rigorously enforce the single subject rule contained in their constitutions.  This paper first argues that the courts should immediately dispense with the common law doctrines frustrating the rule’s enforcement.  The paper then proposes a framework—a new constitutional test by which single subject challenges should be evaluated.  The proposed framework is grounded in the intent of the rule’s framers and ratifiers.

A Succinct, Holistic Look at Climate Change Legislation

Chris Henry.............................................................................. 231

The legislative process in the United States moves slowly, and any legislation that does become law is still subject to change along with the partisan makeup of Congress.  Due to the time-sensitive nature of climate change, climate change activists should look to alternate ways to implement policies or try to circumvent the legislative process entirely.  First, this article provides the basics of climate change legislation, and discusses the unique problems facing climate change activists.  Then, this article describes the history of climate change legislation in the United States.  Next, this article explores ways to change climate change policies without resorting to the legislative process, and ways to effect change through the legislature which are not subject easily overturned over time.  Even if environmentalists are able to pass federal climate change legislation then it must be both effective and lasting.  Perhaps the best way to accomplish this is to include precommitant strategies and make the legislation flexible enough to withstand political change.

 Empower the Student, Liberate the Professor: Self-Assessment by Comparative Analysis

Joi Montiel............................................................................... 249

Experts in legal education have argued that law professors should teach students to be self-regulated learners—to be conscious of their learning process so they can transfer learned skills.  They have also argued that law professors should assess student learning as learning occurs, rather than giving a single end-of-semester exam.  However, use of formative assessment—assessing student learning throughout the semester—can be perceived as a burden on professors.

 This Article introduces Self-Assessment by Comparative Analysis, a teaching method that empowers law students by providing a formative assessment that teaches students to self-regulate their learning, preparing them for the realities of law practice.  The benefit to law students does not come with a corresponding burden to professors; it “liberates” law professors from the labor-intensive grading that is normally associated with formative assessment.

Why Illinois Should Adopt Federal Rule of Evidence 803(18) to Allow the Learned Treatise Exception to the Hearsay Rule

Ralph Ruebner, Katarina Durcova & Amy Taylor ................... 275

Illinois still adheres to a rigid and outdated common law principle that treats a learned treatise as hearsay.  This principle stands at odds with the adoption of Federal Rules of Evidence 703 and 705 by the Illinois Supreme Court.  Illinois courts have developed clever ways to get around the common law prohibition; thereby creating an incoherent and inconsistent jurisprudence that at times yields bizarre outcomes.  Adoption of the federal learned treatise exception to the hearsay rule would set out a consistent standard in Illinois for the admissibility of a learned treatise and allowing it as substantive evidence.  First, this article will lay out the current standards in Illinois regarding the use of learned treatises.  It will focus on the inconsistencies in the application of the current Illinois common law and then address how adoption of this hearsay exception will increase efficiency among trial courts.

COMMENTS

Is Registering as an Animal Abuser in Illinois Abusive to the Offender? An Examination of the Proposed Illinois Animal Abuse Registry

Alisha L. Biesinger................................................................... 299

This Comment explains why the proposed animal abuse registry in Illinois should not be passed because it pushes constitutional limitations, is impractical, and would be ineffective in meeting its goals.  It first discusses background information on animal abuse registries, including Illinois’ proposed registry, and other relevant Illinois registries.  The Comment then discusses the constitutional limits any registry in Illinois faces and focuses on how the proposed animal abuse registry pushes the constitutional bounds of due process.  Lastly, the Comment analyzes the problems associated with an animal abuse registry in Illinois, most notably the lack of financial resources in Illinois and unlikely success of the registry. 

It is Hard to Make Everyone Happy: The Rights Gained and Lost By Companies and Employees in the Context of the Affordable Care Act Contraception Mandate

Paul R. Hale............................................................................. 323

The Affordable Care Act Contraception Mandate was implemented so that companies would be required to provide their female employees with contraception healthcare coverage.  However, several different types of entities, such as non-profit religious organizations, have been exempted from paying for the Contraception Mandate because providing contraception healthcare to their employees conflicted with the corporations’ religious principles.  Corporations are legal persons, which affords them many, but not all, of the protections a natural person enjoys under the First Amendment.  While the religious freedom of corporations is recognized by federal statute, corporations do not have religious protection under the First Amendment.

Recently, the Supreme Court of the United States decided that for-profit corporations, most notably Hobby Lobby Stores, Inc., are also exempt from providing for the Contraception Mandate on the grounds that the contraception healthcare violates the religious beliefs of the corporation.  The ruling invalidates the application of the Contraception Mandate to for-profit religious companies and shifts the burden of providing for contraception healthcare to the female employees. The Hobby Lobby Stores, Inc. line of cases presents a conflict between the religious rights of the corporate person and the employment and religious rights of natural persons.  This Comment will argue that the Court’s decision to invalidate the Contraception Mandate, in the context of Burwell v. Hobby Lobby Stores, Inc., is incorrect because this ruling infringes upon the “religious beliefs” of natural person employees under Title VII of the Civil Rights Act of 1964.  The Court’s holding oppresses the Title VII religious rights of the natural person, which arise from constitutional protection, while granting religious protection to corporate persons, who have not been given religious constitutional protection.

CASENOTES

Must The Corporation Pay For The Sins Of The Employee After United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343 (5th Cir. 2013)?

Jessica Shay Morgan............................................................... 347

This Note analyses the Fifth Circuit’s decision in United States ex rel Varva v. Kellogg Brown & Root, Inc. to award civil punitive damages against a corporation after an employee violated the Anti-Kickback Act, 41 U.S.C. §§ 51-56 (1986).  The statute prohibits individuals from offering bribes to the U.S. government in exchange for preferential treatment under government contracts.  Traditionally, corporations were held liable for employee violations in amounts equal to the value of the kickback.  Essentially, the corporation was responsible for making the government whole in recoupment of the benefit received by the corporation.  Individuals, on the other hand, suffered more stringent penalties for knowingly violating the statute.  The statute punished knowing violations with $11,000 per occurrence penalties, plus the value of the kickback.  In Kellogg, the Fifth Circuit Court held that a corporation can be vicariously liable for knowing violations of the statute and suffer per occurrence penalties.

 This Note argues that the Fifth Circuit inappropriately determined that vicarious liability could be imputed to a corporation by dismissing the statute’s punitive characteristics and disregarding the application of the act-for-the-benefit-of-the-principal rule of agency.  It provides background information on the Anti-Kickback Act and its applicability in government contracts.  It also describes the application of vicarious liability and punitive damages under similar statutes.

Looking Out for the Illinois Home Buyer: Analyzing the Court’s Narrow Approach in Kalkman v. Nedved, 2013 IL App (3d) 120800, 991 N.E.2d 889

Andrew J. Sheehan .......................................................................... 373

For many, purchasing a home is the ultimate American dream.  But for some, this experience can turn into a nightmare full of unexpected repairs and unforeseen headaches.  Although lawmakers have made strides to protect home buyers (e.g.,enacting Illinois' Residential Real Property Disclosure Act), this dream-gone-bad dilemma continues to be a real concern in Illinois.  Still today, many unsuspecting home buyers are saddled with costly defects and deteriorating conditions that were never disclosed by sellers at the time of purchase.

For example, in a case of first impression, the Illinois Third District Court, in Kalkman v. Nedved, recently held that a seller is not obligated to disclose defective windows or doors in a home, even if those defects are known to the seller. This Note examines the majority's decision and argues that the court was incorrect in holding that a seller’s duty to disclose defects in a property’s walls did not also require a seller to disclose defects in windows or doors.  Specifically, the court should have focused on the functional definition of the terms in the statute to carry out its purpose, which is to ensure home buyers are protected from unknown conditions that materially affect various functions of the residence. 

As a result, Kalkman court essentially creates a loophole that permits home sellers to knowingly withhold information about defects in a home—such as leaky windows or doors that do not seal properly—that could significantly affect its value.