Vol 40. No. 2 Winter 2016 | School of Law | SIU

Vol 40. No. 2 Winter 2016

ARTICLES

The Role of Apologies in Labor Arbitration Outcomes

Michele Hoyman, Lamont Stallworth & David Kershaw.................................171

This article considers the extent to which apologies provided by grievants affect the rulings of labor arbitrators in discipline and discharge cases.  We used an experimental survey design which asked respondents to render awards on hypothetical arbitration cases.  Hypothetical cases varied across four variables of importance: (1) the (perceived) sincerity of an apology, (2) the timing of the apology, (3) the issue in the case—sexual harassment, insubordination due to refusal to work, and insubordination due to profanity, and (4) the seniority of the grievant.  All members of the National Academy of Arbitrators were surveyed, which provided a total of 177 respondents and 1773 hypothetical case decisions. The data show sincere apologies can greatly increase the probability of an arbitrator ruling in favor of the grievant. Apologies perceived as sincere lead to favorable outcomes for grievants, more than apologies seen as insincere. However, contrary to the findings of past studies, we found that the timing of an apology does not matter.  Whether an apology is offered early or late has little impact on arbitrator rulings.  Overall, the data suggest that at least one subjective factor, an apology, plays a large role in determining arbitral outcomes.  Our study also found that seniority, which is an objective, case-related factor, is important.  In summary, our findings provide quantitative support for theories on how arbitrators weigh subjective factors, or non-case related factors, when deciding cases.

Why U.S. States Need Pension Waiver Credits

Randall K. Johnson......................................................................................203

This article identifies a novel approach to public pension reform, which takes into account existing political and legal constraints.  It does its work in at least four ways.  First, the article encourages better use of public sector resources by calling for the elimination of public pension inefficiencies.  Next, it explains how to limit public pension inefficiencies, at least on a prospective basis, by moving away from defined-benefit pension plans.  Third, the article describes one way to move beyond defined-benefit pension plans through the creation of a new tax expenditure program, specifically, a Pension Waiver Credits Program.  Finally, it explains how to implement this new tax expenditure program to address the U.S. public pension crisis. 

The Constitutional Conventions of Illinois; An Annotated Bibliography

Douglas W. Lind and Alicia G. Jones..............................................................221

Illinois has called six constitutional conventions, beginning with its statehood in 1818, resulting in four approved state constitutions, approved in 1818, 1847, 1870, and 1970, and two constitutions rejected by voters in 1862 and 1920–1922.  Conventions have been called seeking constitutional remedies for various problems that arose as the state’s population grew.  These included broad, general issues like the distribution of powers between government branches, the veto power of the governor, slavery, and suffrage, as well as more discrete issues, like improvement of rivers, the contracting out of convict labor, and the many concerns associated with the rapid growth of the Chicago metropolitan area.  There currently exists no comprehensive annotated bibliography on the conventions and constitutions of Illinois.  The intent of this work is to fill a dearth in the literature regarding Illinois constitutional conventions by providing bibliographic, and, when available, virtual, access to the published materials produced before, during, and after each of Illinois’ six constitutional conventions. This work anticipates the bibliographic needs of anyone wishing to research the state’s constitutional history, gathering together in one document the citations and, when freely available, links to all published materials produced before, during, and after each of Illinois’ six constitutional conventions.

Fifty Years of Open Source Movement: An Analysis through the Prism of Copyright Law

V.K. Unni ..................................................................................................271

The open source software development model, which concerns the manner in which software technology is held, developed, and distributed, is an important phase in the evolution of the software industry.  Open source software has powered the infrastructure of the Internet, and programs like Linux, Apache, and BIND, which use open source software, are often used as tools to run various Internet and business applications.  Under the open source model, users are given access to software’s source code, and all components of the software are made available to the market by use of a very liberal license with few restrictions.  This article argues the open source model has had a positive impact upon the public domain by giving society innovative and value added software projects.  In addition, the open source software movement has inspired similar movements, like Creative Commons licenses dealing with content including music, books and other literary works, and other creative materials covered by copyright.  The article explains the open source business model, in which individuals, companies, and organizations working on their own time and with their own money develop code, and distributors earn income by charging fees for service or selling hardware.  The article also explains the effect of prominent litigation involving open source software, both in the United States and abroad.  The article concludes that the open source licensing movement has given voice and space to those who dreamt of a world of innovation and creativity completely disconnected from the analysis of balance sheets and financial statements. 

COMMENTS

Religious Liberty vs. Discrimination:  Striking a Balance When Business Owners Refuse Service to Same-Sex Couples Due to Religious Beliefs

Alex Riley..................................................................................................301

Same-sex marriage is now legal in all fifty states, which has created a same-sex wedding industry.  Some business owners, who do not believe in discrimination based on sexual orientation, nevertheless have religious beliefs that forbid them from participating in same-sex marriage ceremonies and celebrations by providing goods and services for those ceremonies and celebrations.  This comment argues for passage of a statute which adequately protects business owners who have religious objections to same-sex marriage, but does not provide for blanket discrimination against the LGBT community.  The comment argues this goal is feasible if the statute is narrowly tailored to encompass only businesses in the wedding industry engaged in wedding-related business transactions.  The comment further argues that the same statute can also ensure LGBT individuals are not discriminated against in conducting regular business activities.  Finally, the comment proposes a sample statute successfully accomplishing the dual objectives of protecting religious liberty and banning discrimination based on sexual orientation.

All is Fair in Law and Warfare in the Ukrainian Crisis: A Look at the Growing Increase of Economic Sanctions as a Weapon of War and the Effects on the International Community

Nicholas Martin............................................................................................323

The Russian parliament authorized the use of military force in Ukraine in March, 2014, ostensibly to protect “Russian interests,” and soon thereafter, Russia seized the entire Crimean region from Ukraine and annexed it into the Russian Federation.  The United States and Europe have refused military intervention in the region, instead relying on legal measures, or “lawfare,” including economic sanctions against both Russian nationals and Russian businesses, including government entities.  Economic sanctions, which have become the United States’ foreign policy tool of choice, often have unintended consequences.  This comment acknowledges the advantages of economic sanctions, while explaining the frequent unintended consequences flowing from their use.  The comment argues that economic sanctions should not be United States’ first option to implement foreign policy objections.

CASENOTES

Can Public Servants Retire?: Analyzing the Illinois Supreme Court’s Decision in Kanerva v. Weems, 2014 IL 115811, 13 N.E.3d 1228

Adam M. Riley............................................................................................349

In response to the State’s failure to consistently fund its pension systems, delegates to Illinois’ Sixth Constitutional Convention adopted the pension protection clause of the 1970 Illinois Constitution, which constitutionally protects the state employee pension benefits.  In 2012, during a period of serious financial hardship, the General Assembly passed legislation eliminating the state’s requirement to pay health insurance subsidies to members of a state retirement system.  Members of the retirement systems challenged the constitutionality of the Act, and in Kanerva v. Weems, the Illinois Supreme Court held that health insurance subsidies are “benefits” under the pension protection clause, and therefore protected under the clause, thus preserving retirees’ right to healthcare benefits.  This Note argues the court’s broad interpretation of the pension protection clause properly covered all benefits arising from membership in a state pension system.  It examines the Illinois Supreme Court’s interpretation of the pension protection clause of the Illinois Constitution in Kanerva v. Weems, and argues the majority was correct to hold that health insurance subsidies are benefits under the pension protection clause.  The Note analyzes the history of pension rights in Illinois and other jurisdictions and discusses the Court’s holding in Kanerva.  Finally, the Note explains why the holding also covers cost of living allowances, but would not extend to the retiree income tax exemption, and concludes that the ruling in Kanerva protects members of any State of Illinois pension system from the diminishment of any benefit received as a member of a pension system.

Old Mr. Kroupa Had a Farm, EIEIO: Establishing a Liberty Interest in 4-H Participation in Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013) 

Steven A. Rodgers .....................................................................................369

In Kroupa v. Nielsen, the Eighth Circuit Court of Appeals decided whether participation in the 4-H organization, and its competitions, was a sufficient right or status under state law to be protected by the Due Process Clause.  This Note argues that the United States Court of Appeals for the Eighth Circuit was correct in holding that 4-H participation is a sufficient right or status deserving protection under the Due Process Clause.  Whether participation in 4-H is a protected right or status under the Constitution may have a substantial effect on numerous other activities as courts struggle with the balance between giving educators, coaches, and volunteers the ability to maintain discipline, and the need protecting minors from arbitrary punishments.  The Note discusses procedural due process rights in general, as they relate to one’s reputation, and how courts have applied due process analysis to extracurricular activities.  The Note also discusses the factual background in Kroupa v. Nielsen, along with the majority and dissenting opinions.  Finally, the Note argues that the Eighth Circuit’s decision was correct because it did not depart from prior precedent, as well as identify a proper test to apply in future cases.

A Power Shift:  Evaluating Corporate Bylaws That Add Fee-Shifting Provisions After the Decision in ATP Tour Inc. v. Deutscher Tennis Bund, 91 A.3D 554 (Del. 2014)

Alixander Pishghadamian..............................................................................389

Fee-shifting provisions are controversial because they shift the costs of litigation to a non-prevailing party, contrary to the widely accepted American Rule of litigation in which parties generally pay their own attorney’s fees and costs.  In a case of first impression, the Delaware Supreme Court had to determine whether a fee-shifting provision within a non-stock corporation’s bylaws, also known as a fee-shifting bylaw, was valid and enforceable.  In ATP Tour v. Deutscher Tennis Bund, the Delaware Supreme Court held that fee-shifting bylaws are permissible under Delaware law because a corporation’s bylaws are presumed to be valid. This Note argues that the Delaware Supreme Court’s holding in ATP Tour was correct, in part because there was no adverse binding or persuasive authority opposing a corporation from adopting a fee-shifting provision within its corporate bylaws at the time of the court’s holding, and in part because fee-shifting bylaws in the state of Delaware do not fall within the American Rule of litigation, as corporate bylaws in Delaware are contractual in nature. The Note argues the Delaware Supreme Court provided a clear standard for the adoption of facially valid bylaws under proper and equitable purposes, and argues the opinion should have included dictum specifying whether the holding applies to publicly held corporations. The Note analyzes ATP Tour in three parts, discussing the lack of authority suggesting fee-shifting bylaws are invalid and enforceable, the equitable purpose standard established by the Delaware Supreme Court in ATP Tour, and the controversy caused by the Delaware Supreme Court’s decision not to specify whether the holding of ATP Tour applies to publicly held corporations.  The note concludes with the author’s closing thoughts and recommendations on ATP Tour, and looks at the future of derivative shareholder actions in the state of Delaware.