Vol 33. No. 2 Winter 2009 | School of Law | SIU

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Vol 33. No. 2 Winter 2009

ARTICLES

Introduction to the Central States Law Schools Association 2008 Conference

Cindy Galway Buys .................................................................... 177

A brief introduction to the Central States Law Schools Association (CSLSA), as well as the schools and scholarship involved, by its former president, Cindy Buys.  Buys is an Associate Professor at Southern Illinois University (SIU) School of Law, which hosted the CSLSA in 2008.  The CSLSA provided the means of solicitation for the three leading articles contained in this issue of the SIU Law Journal.

A Shift Towards Gender Equality in Prosecutions: Realizing Legitimate Enforcement of Crimes Committed Against Women in Municipal and International Criminal Law

Tamara F. Lawson .................................................................... 181

A new era of law enforcement has emerged recognizing the importance of punishing gender-specific violence.  This first wave of "gender-sensitive prosecutors" has changed the way crimes against women are handled in the criminal justice system.  The enactment of gender neutralizing laws and policies has dramatically improved the enforcement of crimes against women and attempts to end the era of impunity.  This Article addresses the changes in prosecutions and further considers international human rights treaties that require gender equality in law enforcement.

In criminal law, it is the willingness of a prosecutor to exercise his or her discretionary authority to file a case that has the most profound impact upon actual realized justice.  Thus, this shift toward gender equality in enforcement directly impacts the exercise of prosecutorial discretion.  This Article discusses the voluntary and involuntary changes to prosecutors’ exercise of discretion to pursue justice in crimes that impact women.  Recently prosecutors are giving priority to and extending specialized resources for the prosecution of gender-specific crimes, such as domestic violence and various forms of sexual violence.  Although there is still much work to be done, the modern era of enforcement of the human rights of women has begun. Articles Editor, Misty Edwards

Attorney Referral, Negligence, and Vicarious Liability

Bruce Ching .................................................................... 217

Attorneys commonly refer clients to other attorneys.  Despite this routine practice, only a few jurisdictions have considered whether a referring attorney can be held liable for  a client’s loss when the attorney who receives the referral commits malpractice. This paper analyzes the three approaches used by courts in such situations, along with relevant provisions from the Model Code of Professional Responsibility and the Model Rules of Professional Conduct.  First, the Michigan/Pennsylvania approach completely precludes liability for negligent attorney referral.  Second, the Florida/Illinois approach holds a referring attorney vicariously liable when he or she receives a fee for making the referral.  Finally, the New York/New Jersey approach examines the totality of the circumstances to determine whether an attorney was negligent in making the referral.

The author suggests 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 broader definition of diversity, rather than using race classifications alone.  These approaches allow school districts to fight resegregation and have their student assignment plans upheld when faced with equal protection challenges.  

In re Marriage of Matchen, 866 N.E.2d 683 (Ill. App. Ct. 2007):  Illinois Removal Standards Do Not Match Up With The Current National Trend

Misty Edwards .................................................................... 297

The Illinois Marriage and Dissolution of Marriage Act provides that a parent who wishes to move out of the state of Illinois with a child must first petition the court for permission.  The court then bases its decision whether the child may be removed on the "best interests of the child" standard.  This Casenote examines the difficulty of applying the "best interests of the child" standard and advocates that Illinois adopt a standard favoring the present national trend: the ability of a custodial parent to move out of state unless motivated by bad faith.

COMMENTS

Internet Gaming Trade Commitments:  The Exaggerated Fears of U.S. Vulnerability under Multiple Trade Agreements

Timothy B. White .................................................................... 321

The United States is a party to many multilateral, regional, and bilateral trade agreements.  Under the Supremacy Clause of the U.S. Constitution, treaties trump inconsistent state law.  Because of a recent World Trade Organization (WTO) case where Antigua challenged various U.S. state and federal gaming laws as being inconsistent with its commitments under the General Agreement on Trade in Services (GATS), many Americans fear that the commitments made under these trade agreements with respect to gambling and gambling services will threaten state regulation of gambling.  Specifically, the concern lies with regional trade agreements such as the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR) where private investors can bring a claim against a State to challenge domestic laws which are inconsistent with its trade commitments.  This Comment seeks to dispel those fears by examining the WTO case between Antigua and the U.S., by comparing the dispute settlement mechanisms of the GATS and CAFTA-DR, and by analyzing an investor-state claim under CAFTA-DR, similar to Antigua’s claim under the GATS.

An Argument Against Prudentially Declining to Recognize Standing to Sue for Illegal Immigrants

Jason Gourley .................................................................... 343

Illegal immigration has come to the forefront of political debate, and state legislatures have acted on the issue, passing a multitude of laws addressing the issue in a wide variety of ways.  Opponents of this legislation have challenged the constitutionality of these statutes in court, and they will continue to do so.  A recurring question in these cases is whether a court should even hear a case challenging such legislation if it is brought by an illegal alien.

This Comment argues that courts should not prudentially decline to recognize standing to sue for illegal aliens who challenge laws addressing illegal immigration.  By examining the reasons for exercising the prudential limitation on standing, including a consideration of the legislature as the proper means of redress, judicial efficiency, and the clean hands doctrine, this Comment concludes that the doctrine should not operate as a bar to claims brought by illegal immigrants.