Vol 41. No. 2 Winter 2017 | School of Law | SIU

Vol 41. No. 2 Winter 2017

ARTICLES

The Retroactivity of Hurst V. Florida, 136 S. Ct. 616 (2016) to Death-Sentenced Inmates on Collateral Review

Angela J. Rollins & Billy H. Nolas..................................................................181

In Apprendi v. New Jersey, the United States Supreme Court established that any finding that increases a defendant’s potential maximum sentence is an element of the offense that must be presented to the jury and proved beyond a reasonable doubt.  Applying that concept in Hurst v. Florida, the Supreme Court found Florida’s death-sentencing scheme, which required a judge rather than a jury to make the ultimate factual findings to impose a death sentence, unconstitutional.  The Court held that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst did not, however, address whether its holding applies retroactively to death-sentenced individuals.

In federal-habeas review and some states’ post-conviction review processes, this inquiry centers on applying the federal-retroactivity analysis announced by the Supreme Court in Teague v. Lane.  This Article argues Hurst is retroactive to all death-sentenced prisoners seeking post-conviction relief under Teague.  First, this Article asserts Hurst is retroactive because Hurst’s holding included a proof-beyond-a-reasonable-doubt issue—an issue the Supreme Court has traditionally applied retroactively.  Second, the Court’s application of Teague to Miller v. Alabama in Montgomery v. Louisiana indicates that the Supreme Court’s reluctance to hold cases retroactive under Teague may be eroding or that the Court is considering retroactivity under a “contextual approach.” 

Marriage Equality Laws are a Threat to Religious Liberty

L. Darnell Weeden......................................................................................211

The First Amendment of the United States Constitution contains dual concepts related to religion: freedom to believe and freedom to act.  Recent litigation, addressing the conflict between public accommodation of sexual orientation and religious liberty, reveals how legislative and judicial measures diminish the freedom to act in accordance with religious beliefs.  The Supreme Court’s decision in Obergefell v. Hodges, which recognized that same-sex couples are afforded the fundamental right to marry, provided more uncertainty for religious liberty and incited debates as to whether this novel right is superior to the long-standing constitutional rights protecting religious liberty. 

This Article examines these issues surrounding the clash of religious liberty with marriage equality and demonstrates how the expansion of marriage equality has resulted in the contraction of religious liberty.  To maintain religious liberty, this Article proposes that governmental policies that refuse to accommodate individuals with faith-based objections to same-sex marriage be subject to strict scrutiny.  Thus, challenges to such governmental policies must be justified by a compelling governmental interest and narrowly tailored to effectuate that interest under the Free Exercise Clause of the First Amendment. 

TRIBUTES TO PROFESSOR BILL SCHROEDER

Dedication...................................................................................................... 237

It is a Wonderful Rule: Reflections on the Life and Career of Professor William A. Schroeder Through the Lens of Federal Rule of Evidence 404(A)

Christopher W. Behan..................................................................................... 239

“Your Time to Shine is Drawing Near”: Remembering Professor Bill Schroeder

Cynthia L. Fountaine....................................................................................... 247

Bill

Brannon P. Denning..........................................................................................253

Remembering Bill Schroeder

Patrick J. Kelley.................................................................................................257

Professor Schroeder

Angela J. Rollins.................................................................................................259 

COMMENTS 

Cyber Insecurity: Constitutional Rights in the Digital Era

Jennifer M. Paulson.......................................................................................... 261

As American society becomes increasingly dependent on the Internet to facilitate communications and everyday tasks, private entities are collecting immeasurable amounts of data from these transactions.  While this data leads to more efficient and effective business decisions, in some instances, it also provides government agencies and law enforcement with new capabilities to monitor and draw assumptions about individuals.  Although the entwinement of the government and private entities naturally occurs to effectuate national security policies and promote public safety, without proper safeguards, this entanglement may threaten fundamental rights.  For instance, when the government uses commercial data to determine eligibility for government assistance programs, or place individuals on watch lists, constitutional rights like due process are not afforded proper weight.  Furthermore, this type of government surveillance chills First Amendment rights but often escapes both congressional and judicial oversight.  This Comment suggests the creation of a court to oversee government data collection, which will protect civil liberties while offering the secrecy necessary in matters of national security.

The NCAA’s Losing Battle: What Happens When Paying Student-Athletes Meets Title IX? 

Lisa M. Scott..................................................................................................285

Compensating student-athletes is no longer a far-fetched idea.  Lawsuits against the National Collegiate Athletic Association (NCAA) are gaining traction in federal courts, and the NCAA will soon be required to adjust its regulations regarding student-athlete compensation.  Any potential compensation must be given to both male and female student-athletes in substantially proportionate numbers under Title IX of the Education Amendments of 1972.  The Office of Civil Rights (OCR) determines what constitutes substantially proportionate numbers under Title IX, and therefore, the OCR will determine if collegiate institutions are providing proportionate compensation to student athletes.

This Comment argues that allowing collegiate institutions to compensate student-athletes will create a two-tiered Division I system separated by the amount of compensation an institution is able to offer its student athletes.  This Comment suggests that the OCR should consider, among the factors that it presently does, the mission and goals of each institution when it evaluates whether an institution is providing student-athletes with compensation in substantially proportionate numbers.

CASENOTES

Rolling With the Punches Since 1793: The Patent System Before and After Association of Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013) 

Amber N. Sanges............................................................................................. 305

Since the patent system was established, it has withstood numerous generations of legislatures and litigators, proving its resilient nature.  Recently, patentable subject matter has come under scrutiny following a number of noteworthy Supreme Court decisions.  The long-standing judicial exceptions to patentability—laws of nature, natural phenomena, and abstract ideas—have been transformed under a new judicial framework.  Applying this new framework in Association of Molecular Pathology v. Myriad Genetics, the Supreme Court made a definitive determination for patents claiming natural phenomena and laws of nature.

Accordingly, this Note argues this was the most significant decision under the new framework, as it set the stage for the future of biotech and medical diagnostic patents.  Until Congress acts to change the results of this decision, the lower courts, patent agents, and inventors must adapt to meet the ever-changing landscape of patentable subject matter, while balancing the competing policy arguments.

Retiring Pension Reform: An Analysis of In re Pension Reform Litigation, 2015 IL 118585, 32 N.E.3d 1 

Casey P. Fitzgerald........................................................................................... 323

Illinois’ dwindling financial condition is near an all-time low.  In response, the Illinois General Assembly has attempted to reduce the fiscal burden by statutorily decreasing the benefits allotted to state pensioners, despite the pension protection clause of the Illinois Constitution.  In 2013, the General Assembly passed Public Act 98-599, which lowered the pension benefits allotted to state employees who began contributing to the pension system before January 1, 2011.  In In re Pension Reform Litigation, the Illinois Supreme Court deemed this measure unconstitutional.

This Note argues that the Illinois Supreme Court reached the correct decision.  However, rather than determining what the State cannot do, alleviating the financial burden requires discussion of the constitutionally-sound remedies available.  Accordingly, this Note both engages with the court’s suggestions and proposes several other pension-related options that may help mitigate Illinois’ fiscal crisis.