Vol 33. No. 1 Fall 2008 | School of Law | SIU

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Vol 33. No. 1 Fall 2008

ARTICLES

The Unpublished Free Exercise Opinion in Jensen v. Quaring

Paul E. McGreal ........................................................... 1

Since they were opened to the public in March 2004, the Harry A. Blackmun Papers at the Library of Congress have provided a wealth of information about the United States Supreme Court and its landmark decisions.  This Essay leaves the beaten path, focusing on an unpublished Opinion of the Court in the relatively unknown case Jensen v. Quaring.  In the official United States Reports, Jensen is a summary disposition–the Court split four to four and so affirmed the lower court without opinion.  The Blackmun Papers, however, show that the vote after oral argument was five to three to reverse the court of appeals.  After Chief Justice Burger circulated a draft Opinion of the Court that would have radically altered the Court’s approach to the Free Exercise Clause, Justice Blackmun switched his vote, making the tally four to four.  So, while Jensen could have been a turning point in the Court’s Free Exercise Clause jurisprudence, it instead resides in constitutional law obscurity.  Articles Editor:  Kyle Oehmke.

A Survey of Recent Illinois Ethics Law:  Professionalism in

Practice

Kate T. Hlava ........................................................... 23

Professionalism should be a part of every Illinois lawyer’s daily practice.  It is not enough to memorize the Rules of Professional Responsibility.  Creating a legal practice that reflects one’s ethical duties and lives up the high degree of professionalism required by an attorney is a daily task and one that canot be accomplished without effort.  The rules can be unclear and ethical dilemmas can be ambiguous.

However, in many situations there are no excuses; the rules and case law make clear what is required.  There are rules that every attorney should know and ethical duties that should always be implemented.  Most importantly, there is help.  If you have an ethical question, there are places to turn to find the answer.  This article will highlight an attorney’s ethical duties, the Rules of Professional Responsibility and Support and Programs that are available.  Incorporating this information into your daily practice will not only help you avoid future difficulties with clients and inevitably 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 Reform Act of 2002 (BCRA) unconstitutional as applied to three issue advocacy advertisements.  This finding created an exception to the BCRA making enforcement of campaign finance laws questionable at best.  This Casenote postulates that, although the Supreme Court correctly decided WRTL, it should have gone farther to find Section 203 facially unconstitutional.  Rather than the continual increases in restriction to campaign finance that have been ineffectually implemented over the past century, the legislature should try a new approach to campaign finance regulation:  namely, Congress should unleash electioneering by tailoring back the restrictions to electioneering communication.  By increasing disclosure requirements, eliminating the ban on corporate and union contributions, increasing contribution limits, and setting fundraising limits, Congress may finally be able to balance free speech while inhibiting corruption.

COMMENTS

A Man’s Barn is Not His Castle: Warrantless Searches of Structures Under the "Open Fields Doctrine"

Rowan Themer ........................................................... 139

In 1924, the United States Supreme Court held that the Fourth Amendment does not require police or other government agents to obtain a warrant prior to entering upon privately owned "open fields."  This exception to the warrant requirement became commonly known as the "open fields doctrine."  The development of the law in this area has taken considerable time, yet has left some questions unresolved.  One unanswered question is whether the Fourth Amendment protects structures that are located within open fields.

This Comment charts the development of the open fields doctrine in the United States Supreme Court, explores how other courts have applied the open fields doctrine to structures such as barns, and suggests the proper way for courts to do so in the future.  Courts should employ a two-part inquiry when determining whether the warrantless search of a structure located within an open field violates the Fourth Amendment, focusing on the steps the individual took to protect privacy and how the structure was used.  This approach is most consistent with the decisions of the Supreme Court.  Also, this method provides individuals with notice of how far their Fourth Amendment protections reach while accommodating the legitimate needs of law enforcement.

I Consented to Do What?: Posthumous Children and the Consent to Parent After-Death

Amanda Horner ........................................................... 157

This Comment advocates the implementation of a bright line test to establish paternity or maternity for children born posthumously.  The Comment does not address whether posthumous children should inherit from intestate estates or receive social security benefits, but rather focuses on the current consent requirements nationwide and the revisions needed to help parents plan for the birth of their children long after their death.