Vol 43. No. 2 Winter 2019 | School of Law | SIU

Vol 43. No. 2 Winter 2019

ARTICLES

Illinois Trade Secret Law: The Peculiar Problem of Preemption

William Lynch Schaller ................................................................................... 243

Companies and individuals often fail to take steps to protect their business information, trusting their employees and trading partners to keep it confidential. Failure to take affirmative secrecy measures robs business information of trade secret status under the Illinois Trade Secrets Act (ITSA), but Illinois law protected information not rising to the level of a trade secret under a variety of theories before the ITSA was passed in 1987. Surprisingly, the Illinois Appellate Court and the United States Court of Appeals for the Seventh Circuit have construed Section 8(a) of the ITSA as abolishing all non-trade secret claims, even though Section 8(b)(2) of the ITSA expressly preserves such non-trade secret claims. This Article argues that these Illinois state and federal appellate decisions are mistaken; they ignore Section 8(b)(2) and fail to follow appropriate statutory construction canons that operate to preserve non-trade secret claims. This Article therefore urges the Illinois Supreme Court to break its 30-year silence on this preemption question and to reject these cases in favor of a broad construction of Section 8(b)(2) saving non-trade secret claims.

Combatting Military Corruption in China

Thomas H. Au................................................................................................. 301

Recent scandals involving high-level Chinese military officers have energized to reform the Chinese military justice system. These efforts have resulted in some of the most significant structure changes to China’s military legal system since the founding of the People’s Republic of China. This article reviews the legal authorities underpinning China’s military justice system, compares the military justice systems of the U.S. and China, and assess China’s current reform efforts. It also discusses the impact of corruption on Chine military readiness, military-to-military relations, and international relations. The article concludes that China’s current military justice reforms are likely to be inadequate to curb widespread corruption unless China permits a limited degree of independence in the operation of the military legal system.

"Outrunning" The Fourth Amendment: A Functional Approach to Searches of Wearable Fitness Tracking Devices

William Kendall...................................................................................................... 333

This Note applies Riley v. California, 134 S. Ct. 2473 (2014), and other cases to fitness trackers and argues that a blanket rule, which would require police to obtain a warrant prior to searching any digital device found on an arrestee at the time of arrest, is not in line with the Court’s search and seizure precedent. Instead, as in Riley, the appropriate rule is a narrowly tailored rule, easy to apply in the field, which allows a workable balance between government interest and interest of the people.

Part II of this note explores the variety and functionality of fitness trackers as well as the prevalence of such devices among citizens. Part III summarizes the Fourth Amendment, the exception to the general warrant requirement when police search an arrestee, and the holding in Riley as it pertains to the search of digital devices found on an arrestee upon a lawful arrest. Part III also surveys cases in which lower courts have applied Riley to other digital devices. Finally, Part IV provides the proposed rule based on the categories of devices, one rooted in both legitimate government interests and protections of citizens’ privacy, and gives examples of how that rule would work in practice to further the policies that are the basis for the Riley rule.

Assertion of Qualified Immunity by Private State Actors After Filarsky: An Application to The Employees of Prison Health Care Contractors

Athina Pentsou......................................................................................................... 361

There is an ongoing debate between the several circuits as to whether private individuals acting under “color of state law” may assert the defense of qualified immunity in an action under 42 U.S.C. §1983. One of the most prominent aspects of this debate can be found in the context of prison litigation: while state-employed correctional officers are undeniably entitled to assert the defense of qualified immunity, it is greatly uncertain whether their counterparts, privately employed medical personnel that provides on-site medical services at state prisons, are equally entitled to the defense.

This Note proposes a sliding-scale framework that reconciles the Supreme Court’s disparate precedent on the broader issue of private individuals’ entitlement to qualified immunity: the closer the nexus between private and government employees, the more the qualified immunity policy considerations will be implicated, and the lesser the common law history and tradition inquiry will matter. Conversely, when such a close nexus is missing, courts will have to search deeper into the common law history and tradition and shall not extend qualified immunity to private individuals unless there is a strong history of immunity as to the closest analogous private actor. Finally, this Note suggests that there is a strong presumption of a close nexus between the private health care providers who perform on-site services in state correctional facilities and the state-employed correctional officers in these same facilities. Accordingly, courts should allow the assertion of qualifies immunity by on-site private correctional health providers unless the plaintiff rebuts this presumption.

Return to Rehabilitation: Illinois' Evolving Juvenile Sentencing Practices in Light of Miller v. Alabama

Brad Taylor....................................................................................................... 403

In Miller v. Alabama, the U.S. Supreme Court held that the Eighth Amendment requires a court to, prior to sentencing juveniles to life-without-parole, consider mitigating factors attendant to youth. The Court noted that a life-without-parole sentence was only appropriate punishment for a juvenile when the juvenile’s act reflected true incorrigibility. Given the transient nature of youthful characteristics, like impetuosity, true incorrigibility is vanishingly rare. As such, after Miller, the imposition of life-without-parole sentences for juveniles should be similarly rare.

As the birthplace of the juvenile justice system, Illinois holds a special place in the history of the American justice system. Throughout the get-tough-on crime movement in the United States, Illinois – like other states – adopted harsher, retributive-focused punishments for juvenile offenders. Fear of the young “super-predator” has somewhat abated since, but those harsh sentencing guidelines largely remain in place. Following the Miller decision, however, Illinois has a chance to return to its place as a pioneer of juvenile justice by focusing on utilitarian goals of punishment, especially rehabilitation. In keeping with the Miller decision, Illinois should seek to distinguish between the rare incorrigible juvenile offender and the much more common youthful offender whose offense reflects immaturity and impetuosity. Youthful offenders capable of growth and rehabilitation should be sentenced with those objectives in mind.

Insurmountable Burdens and Slippery Slopes: A Solution for Pleading Toxic Torts in the Plausibility Era

Zachry T. Sandifer..................................................................................................... 435

With its decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal in 2007 and 2009, the Supreme Court ushered in a new era of federal pleading standards. The old system of notice pleading was replaced by what has become known as plausibility pleading. In order to avoid dismissal, plaintiffs must now craft their complaints so that all nonconclusory allegations, taken as true, give rise to a claim that is plausible on its face. Immediately after the Court’s decision in Twombly, a heated debate arose in the legal community over many aspects of the new pleading standard. Did it apply to all civil actions? What exactly was required for a claim to be plausible? Would the new standard have a disparate impact on various types of litigation?

This article seeks to analyze how the plausibility standard should be applied to complex toxic tort claims. In doing so, it provides a background on the evolution of pleading standards, the controversies surrounding the new standard, the approaches lower courts have taken in applying the standard, and recent guidance from the Supreme Court dictating how the standard should be correctly applied.

Olympian's Medal and Money Exemption: How Congress's Addition to Internal Revenue Code Section 74 does Very Little for Very Few

Cody Walls................................................................................................... 463

Prize winners face income tax consequences upon receiving their prize. Whether the prize is a plaque, car, trophy, or cash, if it has value, it is generally deemed taxable income by the I.R.S. Congress recently passed legislation, Internal Revenue Code Section 74(d), giving Olympic athletes an exemption from income on their Olympic medals and cash they receive from the Olympic Committee.

This note examines what effect the legislation has on an Olympic athlete’s tax return. Additionally, this note looks at what questions an Olympic athlete might ask themselves when determining what is includible in income or what is deductible as an expense. Is money received from supporters taxable as income? Is a protein-rich diet deductible as an expense? Many questions are posed; some are answered, in an attempt to answer what good, if any, Internal Revenue Code Section 74(d) accomplishes.