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  • Vol 39. No.3 Spring 2015 | School of Law | SIU
    enjoined the federal government from enforcing a regulation requiring such organizations to certify its religious objections to the mandate on a government issued form and to send a copy of the form to the third party administrator of its health insurance plan Wheaton College v Burwell 134 S Ct 2806 2014 A second generation of litigation is now winding its way through the courts on whether exempt organizations claiming religious scruples do not permit the triggering of contraceptive access are required to notify the federal government of the contact information of their insurer or administrator But how else if not through federal government facilitation one may ask are women to obtain the full contraceptive coverage promised by Congress This demand for an extension of a religious accommodation by anti contraceptive believers should be rejected COMMENTS The Best Offense Is a Good Defense Examining Failure to Conciliate as an Affirmative Defense in Employment Discrimination Cases Brought By the EEOC Blair P Keltner 515 Prior to bringing suit on behalf of an employee the Equal Employment Opportunity Commission must follow specific procedural requirements and must engage in conciliation The purpose of conciliation is for opposing parties to avoid the court system by encouraging out of court settlements Employers in the majority of circuits can argue failure to conciliate as an affirmative defense when employers feel the Commission has failed its duty to conciliate However the United States Court of Appeals for the Seventh Circuit recently held that conciliation efforts are not judicially reviewable and as such cannot be raised as an affirmative defense This Comment will explain why a minimal review of conciliation efforts is necessary and Congress should amend Title VII of the Civil Rights Act of 1964 Title VII to provide courts the power to sanction the Commission or an employer that does not engage in good faith in conciliation A minimal review of conciliation efforts is the proper standard because it provides the Commission with deference to determine the appropriate conciliation agreement in the circumstances but also provides an incentive for the parties to conciliate properly the first time Furthermore Congress should amend 42 U S C 2000e 5 f to provide that a party who has engaged in bad faith conciliation may have to pay the other party s attorney s fees or negotiation costs A minimal review of conciliation procedures and a statutory amendment are the best way to ensure the statutory requirements are meaningfully followed Getting Drunk Drivers Off Illinois Roadways Addressing the Split of Authority Regarding 911 Tips Investigatory Traffic Stops Andrew J Sheehan 537 Getting drunk drivers off the road continues to be a major policy goal for police departments and the citizens they aim to protect This is especially true in Illinois where the number of motorists killed by drunk drivers every year remains a prevalent concern Although the U S Supreme Court has failed to provide much guidance many state courts and at least one federal circuit court have determined that police

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/spring-2015.html (2016-02-12)
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  • Vol 39. No.2 Winter 2015 | School of Law | SIU
    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

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/winter-2015.html (2016-02-12)
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  • Vol 39. No. 1 Fall 2014 | School of Law | SIU
    plaintiff s treating non party health care provider absent the plaintiff s authorization In overruling the trial court s order allowing such ex parte communications the 2010 decision comports with the majority of state courts that prohibit such informal discovery techniques Notably however the Missouri court did not rest its holding on any state substantive rule expressly prohibiting ex parte communications but on the court s interpretation of the HIPAA Privacy Rule The Proctor court is the only tribunal that has held that the HIPAA Privacy Rule as opposed to state substantive law does not authorize such communications pitting itself against many sister state courts that have interpreted the HIPAA confidentiality regulations to the contrary COMMENTS Anticipatory Repudiation A Clear Barrier to Communication Garth E Flygare 85 This Comment explores anticipatory repudiation under the U C C in order to address the inherent disincentive to communicate among the parties to a contract when uncertainty of performance occurs This Comment presents a brief history of anticipatory repudiation the framework of the doctrine in the U C C and previously recognized instances of anticipatory repudiation This Comment argues that the current framework discourages open honest communication among the parties to a contract in contradiction to the requirements of good faith and fair dealing necessary in any agreement This Comment reviews some of the previous recommendations for changes to this section of the U C C and attempts to provide potential solutions to overcome the barriers to communication found here by compelling certain communications in specific situations The value in reviewing and addressing the problems found in anticipatory repudiation are further explored in this Comment from a marketing standpoint This Comment argues that the effects of anticipatory repudiation may devalue relational assets when concepts from exchange orientation are taken into consideration and relationship marketing suffers from these inherent barriers to communication Protecting a Dream Analyzing the Level of Review Applicable to DACA Recipients in Equal Protection Cases Tania P Linares Garcia 105 Faced with congressional inaction regarding comprehensive immigration reform the Obama administration through the Department of Homeland Security DHS implemented the Deferred Action for Childhood Arrivals DACA program in an effort to give young undocumented noncitizens the opportunity to contribute their skills and education to the American community by granting them deferred prosecutorial action and work authorization for a renewable term of two years To date DHS has granted DACA relief to over 521 825 young immigrants who would not otherwise be able to legally work in the United States Although DACA recipients enjoy federal work authorization states have adopted policies that restrict the benefits they receive from their employment authorization and bar them from pursuing certain professions These policies treat DACA recipients differently from other noncitizens with temporary work permits Yet it is still unclear what level of review courts should apply to Equal Protection challenges arising from these policies because although the DACA program effectively deems recipients lawfully present it grants them no immigration status This Comment argues that DACA

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/fall-2014.html (2016-02-12)
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  • Vol 38. No.4 Summer 2014 | School of Law | SIU
    Career Services Prospective Students Information for Employers Current Students Information for Alumni Our People Deans Faculty Administrative Professional Staff Civil Service Staff Alumni Law Library Give to the School Info for Future Students Current Students Alumni Friends Employers SIU Law Journal Breadcrumb Navigation Home Academics Journals SIU Law Journal issues Vol 38 No 4 Summer 2014 Share this page Vol 38 No 4 Summer 2014 LAW JOURNAL AWARDS i INTRODUCTION Paula H Holderman Illinois State Bar Association President xiii FOREWORD J David Sanders xiv ARTICLES SURVEY OF ILLINOIS LAW FAMILY LAW Rebecca J O Neill 539 SURVEY OF ILLINOIS LAW STEPPARENT CHILDCARE Jeffery A Parness 575 SURVEY OF ILLINOIS LAW TRUSTS AND ESTATES Susan T Bart Jennifer L Bunker and Sonia D Coleman 615 SURVEY OF ILLINOIS LAW EDUCATION LAW David J Braun 649 SURVEY OF ILLINOIS LAW INSURANCE LAW Margaret Domanski and David Roe 665 SURVEY OF ILLINOIS LAW WORKERS COMPENSATION Brad A Elward and Dana J Hughes 775 SURVEY OF ILLINOIS LAW ENVIRONMENTAL LAW Kyle P Carlson Alison Hayden Kehrer and Emily N Masalski 835 THE ILLINOIS SUPREME COURT S ADOPTION OF THE TORT OF INTRUSION UPON SECLUSION George Bellas and Ayla Ellison 861 STATUTORY DAMAGES EXCLUSIONS Jeffery

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/summer-2014.html (2016-02-12)
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  • Vol 38. No.3 Spring 2014 | School of Law | SIU
    broad a brush in construing the Act allowing defendant officers to assert immunity as an affirmative defense to intentional torts In practice the effect is both confusing and burdensome to plaintiffs and juries In many intentional tort cases the misconstruction requires the unauthorized revision of jury instructions and an unjustified heightening of the mental state to be proved by plaintiffs While there are many variations the prevailing approach of upper level courts has been to divine a duty for officers to not act recklessly out of the affirmative defense provided by the Act thereby requiring plaintiffs to prove a heightened willful and wanton mental state in addition to the traditional elements of an intentional tort These constructions ignore existing Illinois statutes providing for officer liability in the case of intentional tort like offenses and misinterpret the purpose of the Act Upper level state and federal courts must address this issue and re confine the scope of the Act to its original purpose which was to only immunize officers against liability for ordinary negligence COMMENTS A Bunch of Hot Air The Challenges of Regulating Carbon Capture and Sequestration in Illinois Eric P Wilber 441 With mankind contributing to global climate change by emitting carbon dioxide into the air much focus has been placed on reducing these emissions in energy production One important method of reducing carbon emissions in coal fired power plants is called carbon capture and sequestration technology CCS which collects the carbon dioxide byproducts of burning coal and injects these gases deep underground Two demonstration projects were proposed to use this technology in Central Illinois called FutureGen 2 0 and Tenaska s Taylorville Energy Center However both projects have been beset by delays spiraling costs and an uncertain regulatory basis which have created significant problems for the further development of this technology This Comment proposes to create a hybrid model of government and private investment for CCS technology with a streamlined regulatory structure to allow these types of projects to move forward to reduce carbon emissions Aaron s Law Bringing Sensibility to the Computer Fraud and Abuse Act Mark Murfin 469 The Computer Fraud and Abuse Act is a federal law that governs the crime of computer hacking However it was written in a time before the internet as we know it existed Aaron s Law is the latest proposal aimed at fixing it Aaron Schwartz the law s namesake tragically committed suicide while being prosecuted for a violation of this law This Comment argues that Aaron s Law is a good step forward but not the overhaul this nation deserves CASENOTES Don t Stop Til the Medical Malpractice Victim Gets Enough Watts v Lester E Cox Med Ctrs 376 S W 3d 633 Mo 2012 and Why Caps on Noneconomic Damages Violate the Right to Trial by Jury in Medical Malpractice Cases Bradley A Bauer 491 This Note analyzes the decision made by the Missouri Supreme Court in Watts v Lester E Cox Medical Centers In this case

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/spring-2014.html (2016-02-12)
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  • Vol 38. No.2 Winter 2014 | School of Law | SIU
    apply the fundamental rules governing the construction and enforcement of all contracts and effectuate the purposes of the contractual requirements placed on insureds when fashioning the remedy for the breach of those requirements COMMENTS Shared Responsibility Time for Illinois to Adopt The Income Shares Model of Child Support J David Sanders 281 Illinois child support laws are outdated and inconsistent with the majority of child support laws in other states Adopted by forty states and territories the leading child support guideline is the Income Shares Model The design of the Income Shares Model is to level the financial playing field for both parents by considering both parents incomes as well as the financial and non financial contributions of both parents Unlike the Income Shares Model Illinois current child support model fails to recognize the existing societal change of both parents earning an income due to the subjective focus on the non custodial parent s net income Essentially the child support laws in Illinois penalize the non custodial parent and provide no incentives or financial compensation for parental involvement This Comment argues that Illinois should join the national trend and enact legislation adopting the Income Shares Model of child support First this Comment will briefly discuss the history of child support laws in the United States and the different types of child support models Next this Comment will examine the current Illinois child support statute and discuss the multiple deficiencies with the guidelines Finally this Comment will provide an in depth analysis supporting the reasons why the Illinois General Assembly should adopt the Income Shares Model and highlight important provisions the new statute should include Qualified Immunity Not Accident Proof Official Discretion Advised The Need to Clearly Establish the Right to Raise Qualified Immunity in Civil Rights Claims Under 42 U S C 1983 Jessica R Sarff 309 The qualified immunity defense has been available to police officers defending civil rights lawsuits under 42 U S C 1983 since the landmark Supreme Court case of Pierson v Ray in 1967 However since that time the defense has evolved and recent Supreme Court decisions have hinted that it may not be available to officers who make routine mistakes in the course of duty As a result the lower circuits have split with regard to whether government officials are able to raise the defense as of right or whether they must first show an exercise of discretion before getting to the critical inquiry of qualified immunity clearly established law This Comment looks to the Court s original purpose for the qualified immunity defense and argues that the appropriate solution is to completely remove any gatekeeping inquiry into discretion Such action would allow all government officials to assert the defense as of right and not only increase the efficiency of civil rights litigation in the courts but also allow those claims to be decided purely on the basis of clearly established law CASENOTES Three Strikes You re Out A Swing and Miss at Challenges

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/winter-2014.html (2016-02-12)
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  • Vol 38. No.1 Fall 2013 | School of Law | SIU
    the right The VCCR has been successful in regularizing consular relations in many aspects It also has been successful in raising awareness regarding the right of consular notification and the need for consular assistance by foreign defendants However few states have taken advantage of the dispute resolution procedures provided by the treaty and remedies for violations of the treaty have been unsatisfactory to date Thus more work remains to ensure that states and their consular officers are able to give full effect to the guarantees of the VCCR Consular Notification for Dual Nationals Mark E Wojcik 73 The Vienna Convention on Consular Relations VCCR requires parties to inform foreign nationals who are arrested or detained that they have the right to have their consulates notified of that arrest or detention The VCCR is silent however as to what must be done when the person is also a citizen of the country where he or she was arrested or detained When Mexico sued the United States for violating rights of its nationals under the VCCR Mexico dropped a claim for one of its nationals who was also a citizen of the United States This Article argues that the right of consular notification belongs not only to the person arrested or detained but also to the other country and that the right to consular notice should be given to dual nationals COMMENTS The Best of Both Worlds Finding Middle Ground in the Heated Debate Concerning Issuing Driver s Licenses to Undocumented Immigrants in Illinois Dean W Davis 93 For most people possessing and maintaining a valid driver s license is essential in order to live a normal life Without a license common activities that most take for granted namely lawful driving become unmanageable The importance of procuring a driver s license raises an important question to which people should this right extend In early January 2013 Illinois governor Pat Quinn signed into law Senate Bill 957 SB 957 making Illinois only the fourth state to grant driving privileges to undocumented immigrants One of the primary reasons for the law s passage was to combat the risk presented by the more than 250 000 undocumented immigrants residing in Illinois who drive uneducated uninsured and unlawful A survey of states that passed laws similar to SB 957 reveals that laws or programs granting driver s licenses to undocumented immigrants are susceptible to abuse particularly fraud To prevent the problems faced by other states Illinois officials must critically examine the requirements of SB 957 and ensure sufficient safeguards are in place Specifically Illinois should 1 require fingerprints for all undocumented immigrant applicants in order to reduce the risk of fraud 2 require proof of insurance prior to issuing an undocumented immigrant a driver s license 3 match the life of the undocumented immigrant s insurance policy with the validity of his temporary driver s license 4 prepare responses to allegations that SB 957 violates equal protection rights and promotes racial profiling and 5 build incentives

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/fall-2013.html (2016-02-12)
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  • Vol 37. No.4 Summer 2013 | School of Law | SIU
    Current Students Alumni Friends Employers SIU Law Journal Breadcrumb Navigation Home Academics Journals SIU Law Journal issues Vol 37 No 4 Summer 2013 Share this page Vol 37 No 4 Summer 2013 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL Volume 37 Summer 2013 Law Journal Awards i Foreword Justice Lloyd A Karmeier xi Articles Survey of Illinois Law Health Care Law W Eugene Basanta Sherri DeVito Keith E Emmons Robert John Kane

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/summer-2013.html (2016-02-12)
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