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  • Vol 33. No.3 Spring 2009
    Agency EPA or the Agency recently announced its intention to make a finding under the Clean Air Act that greenhouse gases from new cars and light trucks endanger the public health and welfare by contributing to global climate change That proposed endangerment finding is highly controversial because of the possibility that once finalized it will obligate EPA and the states to regulate greenhouse gases from nearly every sector of the economy with national ambient air quality standards the central program of the Clean Air Act that addresses air pollution all across the country Reviewing the Clean Air Act and its legislative history this article analyzes EPA s legal obligation to adopt those broad national standards for greenhouse gases once the endangerment finding takes effect While the statutory language might appear to give the Agency discretion not to do so the article identifies a possible scrivener s error not previously discussed by EPA the courts or others that would require the Agency to issue those national standards Whether a court will accept that new interpretation or instead find flexibility for EPA depends ultimately on whether the Agency persuasively demonstrates that national standards are unworkable for greenhouse gases and unnecessary in light of the other steps it is taking under the Clean Air Act The article analyzes EPA s claims on both scores especially in light of the Massachusetts Court s skepticism on the Agency s climate change record Although applying the current statute to greenhouse gases poses challenges a skeptical court might very well conclude that the national standards can be sufficiently tailored so as to prove useful in our efforts to mitigate global climate change Articles Editors Kyle Oehmke and Cyndi Bollman The Recent Explosion in Summary Judgments Entered by the Federal Courts Has Eliminated the Jury From the Judicial Power Richard L Steagall 469 Prior to a trilogy of Supreme Court cases in 1986 summary judgment was entered only when it was quite clear what the truth was Demurrers to the pleadings resolved the case on the merits for or against the defendant and demurrers to evidence at trial required the consent of the parties Summary judgment was a 19th century device to eliminate spurious defenses from debt collection actions extended to analogous narrow circumstances It existed in twenty states when adopted with the Federal Rules of Civil Procedure in1938 Today a judge reviews the evidence on a motion for summary judgment to determine if the burden of proof is satisfied before a jury can hear the case Meanwhile the Article III power of judges is limited by the Seventh Amendment preservation of the common law right to trial by jury which is both an individual right of litigants and a community right of participation in the judiciary The history of the common law jury and its institutional role as a check on the power of judges developed in the English and American Revolutions demonstrates the radical alteration in federal judicial power that has occurred in the past twenty

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/spring-2009.html (2016-02-12)
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  • Vol 33. No. 2 Winter 2009 | School of Law | SIU
    that courts should not categorically shield attorneys from liability for negligent referral Instead in addition to considering vicarious liability triggered by fee splitting and negligence courts should examine whether an undisclosed conflict of influence motivated the referral In making such an evaluation courts can analogize to doctrines of beach of fiduciary duty undue influence and the business judgment rule Articles Editor Steve Sarm Patent Expertise and the Regress of Useful Arts Dr Andrew W Torrance and Dr Bill Tomlinson 239 Recent studies and findings have unveiled that patent systems may not accomplish the goal of technological progress as well as a commons system at least in terms of innovation productivity and social utility Employing The Patent Game a multi user interactive simulation of patent and non patent commons and open source systems the authors of this Article are currently comparing rates of innovation productivity and social utility but with expert users possessing formal expertise in patent law and open innovation This Article presents results of this study which indicates no statistically significant difference in rates of innovation among a pure patent system a patent open source system and a commons system Interestingly the results of this study are inconsistent with the orthodox assumption that patent systems generate more progress than do more open models of innovation such as patent open source or pure commons systems and are more consistent with predictions and observations from the field of open innovation This study and current and future articles on its findings including this piece hope to help public policy more effectively accomplish the Constitutional mandate of promot ing the Progress of Useful Arts Articles Editor Robert Menees CASENOTES New Limits on the Use of Race in Public School Student Assignment Plans Implications of the Supreme Court s Decision in Parents Involved in Community Schools v Seattle School District No 1 127 S Ct 2738 2007 Rowan E Themer 279 In many school districts throughout the nation white flight has caused urban centers to have disproportionately high percentages of minority residents One way school officials have attempted to battle the growing problem of resegregation is the use of race conscious student assignment plans designed to create a diverse student body In Parents Involved in Community Schools v Seattle School District No 1 the Supreme Court was asked to decide whether school districts were permitted to classify students based upon race in order to achieve diversity The Court struck down the race conscious assignment plans of two districts prompting questions as to whether race can ever be used to foster diversity in public schools Educators across the nation now have to reevaluate any race conscious student assignment plans that they have in place This Casenote aims to offer some guidance on the practical implications this decision has for public schools and offer some suggestions as to how school districts can still effectively combat resegregation School officials would be well advised to use socioeconomic classifications or to incorporate both race and socioeconomic status into a

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/winter-2009.html (2016-02-12)
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  • Vol 33. No. 1 Fall 2008 | School of Law | SIU
    the ARDC it will enable you to create a practice that promotes the very fundamentals of attorney professionalism Articles Editor Amanda Blades Should Parties Disclosure Requirements for Arbitrators be Honored by Courts Positive Software Solutions Inc v New Century Mortgage Corporation Leonard E Gross and Howard L Wieder 71 Courts should refuse to confirm arbitrators awards when arbitrators fail to comply with the terms of an arbitration agreement requiring them to disclose significant information about themselves When Congress enacted the FAA it made it clear that it wanted contracts to arbitrate enforced according to the parties agreement The parties agreement includes the disclosure requirements to which the parties have negotiated themselves or to which they have agreed by electing to follow the procedures of an arbitration association such as the AAA Parties to arbitration lack the protection that court litigants have from potentially biased judges Consequently there is a greater need for them to be able to protect themselves If courts refuse to enforce the parties disclosure requirements for arbitrators the net effect may be to discourage resort to arbitration exactly the opposite of what Congress intended when it passed the FAA Articles Editor Michael E Wurl CASENOTES Holding on to Creditors Rights Under the Hanging Paragraph of BAPCPA Analysis of In re Wright 492 F 3d 829 2007 Kyle Christopher Oehmke 95 The Bankruptcy Abuse Prevention and Consumer Protection Act BAPCPA amended the Bankruptcy Code in several strange ways One of the most prominent examples involves the addition of an unnumbered hanging paragraph to Chapter 13 of the Code which addresses vehicles purchased within 910 days of the debtor s bankruptcy filing This paragraph created a split among the nation s bankruptcy and federal district courts as to whether a debtor s surrender of the vehicle erased a creditor s right to any deficiency claim on the unsecured balance The Seventh Circuit addressed this split in In re Wright and ultimately upheld the traditional right of creditors to such a claim While this Casenote agrees that the Wright court made the right ruling it argues that the court employed largely unpersuasive reasoning The author notes that regardless of its interpretation the hanging paragraph effectively illustrates a shift in modern bankruptcy law as well as the valid concerns of bankruptcy practitioners and professors about the drafting of BAPCPA Unleashing Electioneering Analyzing the Court s Decision in Federal Election Commission v Wisconsin Right to Life Inc 127 S Ct 2652 2007 Michelle D Clark 121 In the realm of political campaigns money is speech Millions of dollars are poured into federal campaigns and lobbying efforts aimed at political candidates every election year For more than a century since Congress first sought to regulate campaign financing an uncomfortable tension has existed between freedom of political speech and curtailing corruption Federal Election Commission v Wisconsin Right to Life Inc WRTL marks the most recent swing in the campaign finance reform struggle In WRTL the Supreme Court found Section 203 of the Bipartisan Campaign

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/fall-2008.html (2016-02-12)
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  • Vol 32. No. 4 Summer 2008 | School of Law | SIU
    Journals Semester Information Rules Honor Code 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 32 No 4 Summer 2008 Share this page Vol 32 No 4 Summer 2008 LAW JOURNAL AWARDS i FOREWORD Jessie M Mahr xi ARTICLES SURVEY OF ILLINOIS LAW CONSERVATION ENERGY AND FOOD DEVELOPMENTS IN AGRICULTURAL LAW A Bryan Endres Donald L Uchtmann 793 SURVEY OF ILLINOIS LAW DEVELOPMENTS IN EDUCATION LAW 2007 Brian D Schwartz W Bradley Colwell Phil Milsk 827 SURVEY OF ILLINOIS LAW ELDER LAW Charles A LeFebvre Martin W Siemer 865 SURVEY OF ILLINOIS LAW EMPLOYMENT LAW Debra L Stegall Tamara K Hackmann 907 SURVEY OF ILLINOIS LAW ENVIRONMENTAL LAW Kyle Rominger Thomas J Hunter Monica T Rios 975 SURVEY OF ILLINOIS LAW HEALTH LAW Keith Emmons W Eugene Basanta Danielle R LeBlang Michael F Daniels Robert John Kane Rick Hindmand Anna M Benjamin 999 SURVEY OF ILLINOIS LAW INSURANCE LAW David J Roe 1039 VOLUME 32 INDEX 1119 Left

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/summer-2008.html (2016-02-12)
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  • Vol 32. No. 3 Spring 2008 | School of Law | SIU
    CIRCUIT RULE 40 e AND THE LAW OF THE CIRCUIT Hon Michael S Kanne 611 In most of the federal courts of appeals a three judge panel must follow decisions of prior panels except when an intervening Supreme Court decision requires a different result However under Seventh Circuit Rule 40 e a panel may directly overrule a prior decision if the panel circulates a draft opinion to all active judges and a majority of them do not vote to rehear en banc the issue of whether the new position should be adopted This paper will discuss the Seventh Circuit s experience under Rule 40 e and its implications for stare decisis and the law of the circuit The paper will also consider objections by a D C Circuit judge to her court s analogous practice the Irons footnote The procedure she said has evolved from an expedient device to reconcile inconsistent circuit holdings into a summary method of overruling unambiguous circuit precedent without any of the safeguards or formalities attending the en banc process A three judge panel determines that full court consideration is warranted and non panel members concur without benefit of briefing or argument The resulting decision is then announced by footnote Reasoned decisionmaking and stare decisis call for a more deliberate process In re Sealed Case No 97 3122 In re Sealed Case II 181 F 3d 128 145 D C Cir 1999 Henderson J concurring Articles Editor J Matthew Thompson THE LAW OF THE CIRCUIT REVISITED WHAT ROLE FOR MAJORITY RULE Arthur D Hellman 625 Two features define the ordinary course of adjudication in the federal courts of appeals First cases are heard and decided by panels of three judges selected at random from among a larger number of eligible judges Second decisions of those panels are binding on later panels unless overruled by the Supreme Court or by the court of appeals sitting en banc One consequence of these arrangements is that binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit s active judges Two prominent appellate judges have offered competing perspectives on the prospect of minority control of circuit law on an important issue Former Chief Judge Douglas H Ginsburg of the District of Columbia circuit has endorsed the premise that the majority should rule In contrast former Chief Judge James R Browning of the Ninth Circuit has championed an approach that he refers to as panel autonomy Taking these competing perspectives as its starting point this article examines the role of majority rule in the development and application of the law within the federal judicial circuits Articles Editor Andrew J Fisk PANEL IV HIERARCHY CONSTRAINTS SUPREME COURT REVERSALS EXPLORING THE SEVENTH CIRCUIT Stephen J Wermiel 641 Legal commentators and Supreme Court watchers continue to focus on statistics showing reversal rates for the U S Court of Appeals and to draw conclusions about the circuits especially the Ninth Circuit from the

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/issues/spring-2008.html (2016-02-12)
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  • Symposium Speakers
    Illinois and President Illinois Association of Problem Solving Courts Judge Ford has served as Circuit Judge in Champaign County since 2005 He served as an Associate Circuit Judge in the Sixth Circuit from 1985 2005 He presides over the Champaign County Drug Court and presided over the Mental Health Court which he established in 2011 He currently serves as a member of the Illinois Supreme Court Advisory Committee for Justice and Mental Health Planning He is past president of the Illinois Association of Drug Court Professionals and has served as president of the Illinois Association of Problem Solving Courts since 2013 His many awards and honors include National Association of Social Workers 2012 National Public Citizen of the Year University of Illinois Police Training Institute 2013 Distinguished Service Award National Association of Drug Court Professionals 2014 Stanley M Goldstein Hall of Fame Award for Preeminent Contributions to the Drug Court Field and the Champaign County Chapter of the Sons of the American Revolution 2015 Law Enforcement Commendation Medal Prior to his service in the judiciary he worked as an attorney in private practice from 1980 1985 and as Assistant State s Attorney Champaign County State s Attorney s Office 1976 1980 He received his J D from the University of Illinois College of Law in 1976 TRACEY L MEARES Walton Hale Hamilton Professor of Law at Yale Law School Meares has held the Walton Hale Hamilton Professorship since 2007 From 2009 to 2011 she also served as deputy dean of Yale Law School Before joining the faculty at Yale she served as a professor at the University of Chicago Law School from 1995 to 2007 She has served on the Committee on Law and Justice a National Research Council Standing Committee of the National Academy of Sciences She was appointed by Attorney General Eric Holder to serve on the inaugural U S Department of Justice Office of Justice Programs Science Advisory Board She also currently serves on the board of directors of the Joyce Foundation Ms Meares began her legal career as a law clerk for Judge Harlington Wood Jr of the U S Court of Appeals for the Seventh Circuit She later served as a trial attorney in the Antitrust Division at the U S Department of Justice Ms Meares received a BS from the University of Illinois and a JD from the University of Chicago Law School TED R MILLER Ph D Senior Research Specialist Pacific Institute for Research and Evaluation Dr Miller has led more than 150 studies including 25 surveys dozens of statistical analyses of large data bases and more than 50 economic analyses His primary emphasis areas include health economics injury prevention substance abuse prevention and in earlier years housing economic development environmental and public finance analyses He founded the Children s Safety Network Economics and Insurance Resource Center which has worked since 1992 to forge child safety partnerships between insurers and advocates Dr Miller is an internationally recognized safety economist with over 200 publications

    Original URL path: http://www.law.siu.edu/academics/journals/law-journal/symposium-speakers.html (2016-02-12)
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  • BNA at Southern Illinois University School of Law
    Criminal Law Reporter White Collar Crime Report Employee Benefits Benefits Practice Center Pension Benefits Daily Pension Benefits Reporter Employment and Labor Americans with Disabilities Act Manual Collective Bargaining Negotiations and Contracts Construction Labor Report Daily Labor Report Employment Discrimination Report Employment Discrimination Verdicts and Settlements Government Employee Relations Report Human Resources Report Labor and Employment Law Library Labor Relations Week Pension Benefits Daily Pension Benefits Reporter Workplace Immigration Report Workplace Law Report Environment and Safety BioTech Watch Chemical Regulation Reporter Daily Environment Report Environment Reporter Environment Safety Library Environmental Due Diligence Guide Federal Environment Safety Regulatory Monitoring Report International Environment Reporter Occupational Safety Health Daily Occupational Safety Health Reporter Right To Know Planning Guide Report State Environment Daily State Environment Safety Regulatory Monitoring Report Toxics Law Reporter World Climate Change Report Ethics ABA BNA Lawyers Manual on Professional Conduct Family Law Family Law Reporter Health Care Health Care Daily Report Health Care Fraud Report Health Care Policy Report Health IT Law Industry Report Health Law Reporter Health Law Business Library Health Plan Provider Report Life Sciences Law Industry Report Medical Devices Law Industry Report Medical Research Law Policy Report Medicare Report Pharmaceutical Law Industry Report State Health Care Regulatory Developments Homeland Security Homeland Security Briefing Intellectual Property Intellectual Property Library Media Law Reporter Patent Trademark Copyright Journal Patent Trademark Copyright Law Daily World Communications Regulation Report World Intellectual Property Report International Export Reference Library International Business Finance Daily International Environment Reporter International Trade Daily International Trade Reporter World Intellectual Property Report World Securities Law Report WTO Reporter International Tax International Tax Monitor Tax Management Transfer Pricing Report Tax Planning International Asia Pacific Focus Tax Planning International European Tax Service Tax Planning International Indirect Taxes Litigation Class Action Litigation Report Digital Discovery e Evidence Expert Evidence Report U S Law Week

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  • BNA at Southern Illinois University School of Law
    with Disabilities Act Manual Antitrust Trade Regulation Daily Antitrust Trade Regulation Report Banking Daily Banking Report Bankruptcy Law Reporter Benefits Practice Center BioTech Watch Broker Dealer Compliance Report Chemical Regulation Reporter Class Action Litigation Report Collective Bargaining Negotiations and Contracts Computer Technology Law Report Construction Labor Report Corporate Accountability Report Corporate Compliance Library Corporate Counsel Weekly Corporate Governance Library Corporate Governance Report Corporate Law Daily Corporate Practice Library Criminal Law Reporter Daily Environment Report Daily Labor Report Daily Report for Executives Daily Tax Report Digital Discovery e Evidence E Commerce Tax Report Electronic Commerce Law Report Employment Discrimination Report Employment Discrimination Verdicts and Settlements Environment Reporter Environment Safety Library Environmental Due Diligence Guide Expert Evidence Report Export Reference Library Family Law Reporter Federal Contracts Report Federal Environment Safety Regulatory Monitoring Report Government Employee Relations Report Health Care Daily Report Health Care Fraud Report Health Care Policy Report Health IT Law Industry Report Health Law Reporter Health Law Business Library Health Plan Provider Report Homeland Security Briefing Human Resources Report Infrastructure Investment Policy Report Intellectual Property Library International Business Finance Daily International Environment Reporter International Tax Monitor International Trade Daily International Trade Reporter Labor and Employment Law Library Labor Relations Week Life Sciences Law Industry Report Media Law Reporter Medical Devices Law Industry Report Medical Research Law Policy Report Medicare Report Mergers Acquisitions Law Report Money Politics Report Occupational Safety Health Daily Occupational Safety Health Reporter Patent Trademark Copyright Journal Patent Trademark Copyright Law Daily Pension Benefits Daily Pension Benefits Reporter Pharmaceutical Law Industry Report Privacy Law Watch Privacy Security Law Report Product Safety Liability Reporter Real Estate Law Industry Report Right To Know Planning Guide Report Securities Law Daily Securities Regulation Law Report State Environment Daily State Environment Safety Regulatory Monitoring Report State Health Care Regulatory Developments Tax and Accounting

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