Vol 34. No. 1 Fall 2009 | School of Law | SIU

Southern Illinois University

Vol 34. No. 1 Fall 2009 | School of Law | SIU

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Vol 34. No. 1 Fall 2009

ARTICLES

Resisting Anti-Intellectualism and Promoting Legal Literacy

Leonard J. Long (1)
Professor Long urges everyone involved in legal education, including professors, lawyers, students, and judges, to ask just one question: Of what use is a law school education? Those involved with law school educations should strive to be intellectually curious and well-rounded in education, and not to maintain the narrow view of simply “training lawyers.” For the benefit of society, consumers of legal services, lawyers, and law firms, we must encourage the pursuit of legal literacy. Law students should be encouraged to explore American literature and traditions of Anglo-American law to facilitate their legal literacy and to become cultural elitists. Students and law professors today, in attempting to broaden their legal knowledge, are starting off with already narrow general law knowledge which then continues to get narrower, when, in fact, they should be starting with a broad range of general law knowledge which then becomes narrowly tailored into a few specific areas to nurture their intellectual curiosity and be classified as culturally elite. Unfortunately, law professors, school administrators, and members of the legal bar today do not, for the most part, value legal literacy because they have not embraced such a notion themselves and, consequently, they do not encourage it in the majority of legal education institutions. Legal education is not just about obtaining a job after graduation, making money, or acquiring social status, power or influence, but rather, it should nurture law students’ ability to better address complex social and legal problems affecting real people living real lives and further enhance their legal literacy. Articles Editor: Cyndi Bollman

Standing and Speaking Constitutional Truth to Local Power Regarding Undocumented Immigrant Residents Dwelling with We the People of the United States

L. Darnell Weeden (55)
Under the due process clause of the 14th Amendment of the United States Constitution, undocumented immigrants must be treated fairly. Across the nation, state and municipal governments attempt to regulate immigration by enacting laws with harsh penalties directly aimed at undocumented immigrants. When state and municipal governments take such action, they cause fear and unrest among all citizens living in their communities. This fear and unrest often leads to violence against the undocumented immigrants.
In addition, federal courts sometimes fail to recognize that undocumented immigrants have standing to challenge local government attempts to regulate immigration. Not only do these regulations negatively affect economic opportunities for undocumented immigrants, they also interfere with the rights of all citizens to work and earn a living. It is not the job of state and municipal governments to regulate immigration; this is an area that rests solely with the federal government. To combat these issues, American citizens must insist that Congress enact comprehensive legislation to make undocumented immigrants authorized employees, citizens, and taxpayers. Articles Editor: Leslie M. Warren

The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court

Timothy J. Storm (73)
The level of review that an appellate court grants to a lower court’s decision, expressed as the standard of review, is usually treated as a merely procedural and often unimportant matter. However, standards of appellate review actually serve a vital role in limiting the power of reviewing courts so as to maintain the proper balance between courts at various levels of the judicial system.
An appellate system without such standards would effectively subject every case to a boundless review process amounting to a new trial for every issue, thereby extending the duration and cost of litigation. On the other hand, excessive deference to the lower courts’ rulings could transform appellate review into a rubber stamp that does little to create a coherent body of legal precedent. Applying different levels of deference to different types of judicial decisions balances the need for consistent results across the system with the need for certainty that flows from a degree of finality of lower courts’ decisions. The goal of balancing consistency and certainty that standards of review are intended to achieve can be realized in practice only if reviewing courts consistently apply the standards. Yet the question of whether a reviewing court is properly applying the standard of review in the course of rendering a decision is virtually insulated from further analysis. Moreover, there has been little academic attention directed to whether reviewing courts display and apply a consistent understanding of the meaning of each of the standards of review.
This article relates the results of a study intended to explore that question. An analysis of more than 1,200 reported opinions issued by the Illinois Appellate Court during a three-year period shows that there is a high correlation between the level of deference to be afforded to the trial court’s ruling and the affirmance rate. That correlation is observed between the five appellate districts and from year to year. The observed correlation suggests that those courts do, in fact, consistently apply the standards of review. Articles Editor: Leslie M. Warren

The Missouri Workers’ Compensation Legal Advisor System: Can It Be Resurrected Under the New Law?

Michael Moroni (117)
Historically, approximately forty to sixty percent of Missouri workers’ compensation cases are handled by the claimant pro se. Prior to 2005, the Missouri Division of Workers’ Compensation provided a Legal Advisor to meet with claimants to explain the system’s medical and financial benefits and assist them in understanding their rights. Under the 2005 Act, the position of Legal Advisor was eliminated. Additionally, the Ethics Counsel for the Missouri Supreme Court has ruled that it is no longer ethical for the Legal Advisor to provide many of the services traditionally available to claimants. As a result, unrepresented claimants no longer receive the benefits which were provided under the old system. Since 2005, there has been an approximate fifteen percent reduction in the monetary value of pro se settlements. The State Auditor has gone so far as to argue that pro se claimants are now at a disadvantage and has recommended that these services be provided by other attorneys within the Department of Labor. This paper examines whether the old “Legal Advisor system” can be re-implemented under the new Act and concludes that, to a great extent, it can be resurrected. This paper further concludes that because of the proven inequities of the new system, a modified version of the old system should be reinstated. In reaching these conclusions this paper reviews the history of the workers’ compensation system, the 2005 legislative changes, the opinions of the Ethics Counsel, and the functioning of similar systems in other states. In particular, the ethics opinions are re-examined in light of the historical rights and responsibilities of the Missouri workers’ compensation system and this paper examines how those opinions mesh with workers’ compensation statutory law and case law. Articles Editor: Cyndi Bollman

COMMENTS

Indecisiveness in Compensating Post Traumatic Stress Disorder: Where Does Illinois Leave First Responders?

Nicholas B. Haynes (151)
Workers’ Compensation is designed to promptly compensate employees injured in the course of employment. In the past forty years, most states have extended workers’ compensation recovery to employees who suffer from a mental injury resulting from their employment. In Illinois, however, employees seeking to recover for employment-related mental illnesses must overcome a higher evidentiary standard if they work as a first responder or a similar position where they are trained for, and exposed to, traumatic situations on a regular basis. Statutory language and case law interpreting the use of a higher evidentiary standard are unclear as to whether a first responder, or a similarly situated worker, may recover for mental injuries at all. This comment argues that first responders cannot be singled out and burdened with a higher evidentiary threshold, and the state’s legislature must provide definitive legislation on the subject.

Is It Time? Reform of “Don’t Ask, Don’t Tell” and Article 125 of the Uniform Code of Military Justice

Levi Bennett (175)
In 1993 Congress enacted a statutory ban on military service by open homosexuals. President Obama has pledged that this ban will be repealed. A variety of issues arise as a result of this planned repeal, including whether the presence of open homosexuals will have a negative impact on good order and discipline in military units. This Comment discusses these issues and argues that Congress should repeal the current ban and grant regulatory power over service by open homosexuals to the Department of Defense. This Comment also briefly discusses Article 125 of the Uniform Code of Military Justice penalizing sodomy, and argues that the Article should be modified so that it does not penalize consensual sexual acts between consenting adults regardless of sexual orientation.

CASENOTES

When What You Don’t Know Can Hurt You: Third Party Liability for Fraudulent Misrepresentation in Non-commercial Settings After Doe v. Dilling, 888 N.E.2d 24 (Ill. 2008)

Laura Barke (201)
Fraudulent misrepresentation actions most commonly arise in the commercial context. In Doe v. Dilling, however, the plaintiff attempted to expand the tort’s usage to an extremely personal context and hold the parents of her fiancée liable for fraudulently misrepresenting her fiancée’s HIV status. Although this Casenote agrees that the Illinois Supreme Court reached the correct result in denying the plaintiff’s claim, it argues that the court failed to provide a clear framework for future cases. Because this case is susceptible to misinterpretation and could potentially bar all claims for fraudulent misrepresentation within non-commercial settings, this Casenote sets forth a test for courts to apply in such cases. Rather than focusing solely on whether the misrepresentation occurred in a commercial context, courts should also consider whether the defendant owed the plaintiff an inherent duty and, specifically, whether the defendant is a third party to the occurrence causing the harm.

Post-Employment Restrictive Covenants: Illusory in Illinois? Addressing the Implications of Brown and Brown, Inc. v. Mudron, 887 N.E.2d 437 (Ill. App. Ct. 2008)

Timothy James O’Hern (227)
The enforceability of a post-employment restrictive covenant with an at-will employee encompasses a number of concerns for and against enforcement. Illinois courts have weighed these concerns and appropriately determined that these restrictive covenants are enforceable if there is adequate consideration. Accordingly, a fact-intensive approach is typically used to determine whether adequate consideration exists to enforce the covenant. The court in Brown and Brown, Inc. v. Mudron, however, reduced the ‘adequacy of consideration’ inquiry to a numerical formula that was both unsupported by Illinois case law and an inappropriate balancing of employee and employer interests. While this Casenote agrees that the Brown court correctly noted that post-employment restrictive covenants are enforceable if there is adequate consideration, it argues that the court incorrectly weighed the appropriate concerns in finding a lack of consideration in this case. The author notes that the numerical approach employed by Brown inappropriately limits an employer’s ability to use restrictive covenants to protect their legitimate business interests.