Vol 39. No.3 Spring 2015 | School of Law | SIU

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Vol 39. No.3 Spring 2015

ARTICLES

The Fight Goes on Forever: “Limited Government” and the First Bank of the United States

Michael Coblenz...................................................................... 391

Conservative jurists and politicians argue that the “Framers” wanted limited government.  But the First Congress, with eighteen men who participated in the Constitutional Convention as members of either the Senate or the House of Representatives, overwhelmingly supported Alexander Hamilton’s plan for the First Bank of the United States, and rejected James Madison’s arguments that chartering a bank was beyond the enumerated powers granted Congress under the Constitution.  Most of the framers in the first government, in other words, rejected Madison’s views, and hence the view of modern conservatives, on limited government.

The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(b)(3)

Wm. Dennis Huber................................................................... 451

The purpose of this paper is to examine the requirements of filing notices of appeal and the proof-of-service requirements of Illinois Supreme Court Rule 12(b)(3).  Illinois Supreme Court Rule 12(b)(3) has what can only be called “curious, perjurious requirements.”  They are curious because, in conjunction with Rule 373, they require an affiant to state under penalty of perjury that he or she has personal knowledge of events that have not yet occurred.  They are perjurious because they require the affiant to state under penalty of perjury they already performed an act when in fact they did not and could not.  In order to understand the perjurious requirements of Rule 12(b)(3) several factors must first be considered separately: the Rule itself, the nature of affidavits, and the statutory definition of perjury. When combined, it is clear that the Rule is tantamount to requiring an affiant to commit perjury.

  

Corporate Free Exercise of Religion and the Interpretation of Congressional Intent: Where Will It End?

Patrick J. McNulty and Adam D. Zenor.................................... 475

Once known merely as an arts-and-crafts chain, Hobby Lobby now holds a special place in American legal lexicon as the personification of for-profit corporate religious exercise.  This is the result of a decision by the United States Supreme Court last term in which the Court held that business practices compelled or limited by the religious beliefs of corporate owners deserve some measure of protection against interference by the federal government.  The religious belief at issue in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) is that life begins at conception; the business practice is group health insurance coverage for corporate employees and their families; the government interference is the Affordable Care Act which mandates that group health plans offer no-cost contraceptive coverage; and the source of protection against that mandate is the Religious Freedom Restoration Act of 1993.  The Court’s holding is far-reaching, controversial, and, in the authors’ opinion, wrong.

The ink was barely dry from the publication of the Hobby Lobby decision when the Court, three days later, handed a temporary victory to organizations exempt from the contraception mandate.  Pending appellate review of the underlying case, the Court 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 officers can pull over a suspected drunk driver based solely on a 911 caller's tip.  That said, Illinois has yet to fully adopt this open-minded approach, which has left the courts, attorneys, and police officers with a patchwork of authorities regarding the issue. 

This Comment will argue that the Illinois Supreme Court should adopt a clear drunk driving standard; one that allows police officers—based solely on a 911 caller’s tip—to pull over a suspected driver without having to independently observe the driver commit a traffic offense or otherwise engage in some other criminal activity.  In short, this blanket rule would allow all Illinois police officers responding to a 911 call alleging drunk driving to pull over a suspect without having to independently observe erratic driving, avoiding a potentially-fatal outcome for the suspected drunk driver and other law-abiding motorists. 

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CASENOTES

Title VII Retaliation Claims:  But-For Causation Gets Back at Price Waterhouse in the Wake of University of Texas Southwest Medical Center v. Nassar, 133 S. Ct. 2517 (2013)

Garth E. Flygare...................................................................... 557

In the summer of 2013, the Supreme Court ruled on University of Texas Southwest Medical Center v. Nassar, and, in doing so, the Court established a higher burden of proof for plaintiffs bringing claims for discrimination on the basis of retaliation.  This Note explores the history of Title VII discrimination claims and the Court’s changing approach to the burden of proof from Price Waterhouse v. Hopkins through Gross v. FBL Financial Services, Inc. and on to Nassar.

This Note goes on to argue that the decision in Nassar was inappropriate, both in the Court’s reasoning and for the Court’s failure to anticipate the inevitable confusion, inadequate protections from discrimination, and more frequent status-based discrimination claims.

 

 

Inhale, Exile: Limiting Review of Aggravated Felonies and Crimes Involving Moral Turpitude after Moncrieffe v. Holder, 133 S. Ct. 1678 (2013)

Tania P. Linares Garcia........................................................... 573

Although there is a general consensus that the immigration system in the United States is in dire need of reform, it is still unclear whether Congress will pass a comprehensive immigration reform bill in the near future.  Under current immigration laws, noncitizens face serious consequences, even minor criminal convictions.  The Immigration and Naturalization Act (“INA”) currently allows for a lawful permanent resident to be detained and placed in removal proceedings after a conviction for an “aggravated felony,” a conviction for a “crime involving moral turpitude” (“CIMT”) within five years of admission, or two convictions for “crimes involving moral turpitude.”  Moreover, the overly broad interpretation of those terms has led to dire immigration consequences for even the pettiest of crimes.  For instance, under the CIMT provision, a lawful permanent resident could be placed in removal proceedings for shoplifting no more than an article of clothing and a stuffed animal.  Thus, a noncitizen could face removal over criminal convictions that, in many states, constitute misdemeanors and face penalties of no more than court supervision.

This Note examines the effect of Moncrieffe v. Holder in removal proceedings based on an aggravated felony conviction or convictions for crimes involving moral turpitude.  It will argue that in Moncrieffe, the Supreme Court correctly limited the scope of review for determining whether a criminal conviction constitutes an aggravated felony. It will also argue that, because of analogous statutory language, Moncrieffe should be interpreted to limit the immigration judges’ review of whether a criminal conviction involves moral turpitude.