Vol 35. No.2 Winter 2011 | School of Law | SIU

Southern Illinois University

Vol 35. No.2 Winter 2011 | School of Law | SIU

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Vol 35. No.2 Winter 2011

Articles

Putting Students at the Center of Legal Education:  How an Emphasis on Outcome Measure in the ABA Standards for Approval of Law Schools Might Transform the Educational Experience of Law Students

Janet W. Fisher (225)
Legal education has been notably absent from the assessment movement that has been underway in American higher education for over twenty-five years.  Accreditors of virtually every other area of professional education in the United States have adopted assessment of educational outcomes as part of their accreditation process.  Legal education is poised to join this movement as the American Bar Association considers revisions to its Standards for Approval of Law Schools that would emphasize educational outcomes.
This Article explores how the assessment of educational outcomes might be implemented in legal education at the institutional, programmatic and course levels.  The Article focuses on how assessment might improve the educational experience of law students and change the work of academic support faculty.  The Article concludes that those law schools that embrace the revised Standards in such a way as to create a culture of assessment at their institutions will transform the educational experience of law students. 

It’s My Party and I’ll Run if I Want to: Party Switching And Canidate Eligibility in Light ofHasffeld v. State Board of Elections

Michael J. Kasper (249)
This article analyzes Illinois election eligibility criteria, both past and present, that may prevent candidates from switching their party affiliation within or between election cycles.  Throughout the years, Illinois has prevented party switching through statute and court decisions requiring that all candidates be a “qualified primary voter” of his or her respective political party.  However, a recent Illinois Supreme Court case claims that “no vestige of the former party-switching rule remains.  This article will analyze how the new case appears be at odds with both the statutory language and the previous court decisions.  Articles Editor:Brady M. McAninch

Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis of the Law

James D. Ridgway (269)
Although economic and narrative analyses are clearly useful in exploring legal issues, their foundations and persuasive power have not been thoroughly investigated.  Evolutionary biology can now explain how human beings instinctively approach legal problems, and what features from economic and narrative analysis are rooted in the information processing functions of the brain.  As a result, the most effective aspects of each can be synthesized into a new tool, the archetypal narratives of human interaction.  This article proposes that evolutionary biology indicates that human beings process legal arguments using three archetypal narratives: (1) the story of cooperation, which describes maximizing the gain produced; (2) the story of competition, which describes the fairness of the process; and (3) the story of the accident, which describes the foreseeablity of the unintended interaction.  These archetypes represent a universal approach that can be applied to constructing and deconstructing arguments throughout the full spectrum of legal issues.  Furthermore, the tool has tantalizing substantive implications.  In particular, evolutionary biology may outline a coherent middle ground between competing substantive approaches advanced by law and economics scholars on the one hand and law, and society scholars on the other, as well as suggesting a biological basis for understanding other philosophical divisions in legal theory.

COMMENTS

Unfashionably Late:  Protecting a Designer’s Identity After a Personal Name Becomes a Valuable Trademark

Allison B. Pitzer (309)
This comment discusses the use of personal name trademarks in the fashion industry, and in particular, its impact on the namesake designer.  Designers currently have very few options regarding the use of their personal name as a trademark, and often cannot retain any use of their name after a designer has left the company owning the trademark.  The fashion industry is unique in that personal name trademarks are widely used and become extremely valuable.  At the commencement of a fashion enterprise, a designer will require investors to build his or her brand.  Often, choosing to name the brand after the designer is the best option from an investor’s perspective.  Once the brand becomes popular, the trademark becomes one of the most important assets to the company.  If a designer ever leaves the company, he or she is forced to give up the rights to using his or her name in a new business endeavor.   Designers need greater protection given the personal nature of the item at issue.  This comment proposes that due to an inherent disadvantage, designers should retain ownership of the trademark until the time that the designer freely chooses to relinquish their rights.  Further, the purpose of the governing law, the Lanham Act, cannot be achieved if personal names are sold as commodities while the consumer is led to believe the name represents the individual designer is the source of the product.  Finally, the use of disclaimers is unnecessary and ineffective because they do not further protect the consumer from confusion.

Fill Material Pollution Under the Clean Water Act: A Need for Legislative Change

Kory Watson (335)
The Clean Water Act was implemented to restore and maintain the Nation’s waters. The National Pollutant Discharge Elimination System is the principal permitting scheme under the Clean Water Act that is designated to achieve that objective.  In the wake of ambiguous regulations on fill material, a loophole in the Clean Water Act has arisen. Currently, an entity can apply for a fill permit to discharge waste normally regulated under the Nation Pollutant Discharge Elimination System if the discharge is composed of a sufficiently high concentration of solids. This Comment discusses the regulations on fill permitting and the cases interpreting them. This Comment argues Congress should amend the Clean Water Act to increase the scrutiny given to fill material permit applications which propose to discharge waste.

CASENOTES

Have Household Exposure Claims Washed Out in Illinois?: Nelson v. Aurora Equipment Co., 909 N.E.2d 931 (Ill. App. Ct. 2009)

Kelly M. Murray (357)
Asbestos litigation is the longest-running mass tort litigation in the history of the United States.  Law suits concerning asbestos exposure emerged during the 1970s, after it was conclusively proven that asbestos exposure caused serious health conditions.  The diseases caused by exposure to asbestos, however, typically do not manifest themselves for twenty to forty years after the initial exposure.  Due to the extended latency period, more plaintiffs emerge as time goes on, and litigation tactics must evolve to accommodate new classes of plaintiffs.  Nelson v. Aurora Equipment Co. marks one of the most recent trends in this toxic tort litigation: the use of premises liability claims by persons who have never been on or near the landowner's property for exposure to asbestos carried home on the clothing of a household member who has been on the property, such as an employee.  In Nelson, the Appellate Court of Illinois for the Second District concluded that, in a premises liability action, a landowner's duty did not extend to a person who had no contact with the property in question but who was allegedly injured by asbestos fibers and dust that escaped from such premises.  This Note argues that while the Nelson court reached the correct result under Illinois law, the court's decision does not definitively preclude all claims of household asbestos exposure.  Rather, future plaintiffs might be able to bring a cognizable claim under a products liability theory in Illinois. 

Online Casinos Forced to Fold: Examining the Effects of In Re Baum, 386 B.R. 649 (Bankr. N.D. Ohio 2008)

Justin Volker (383)
Passage of the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) drastically changed the landscape of the online gaming industry.  Although the law was aimed at stopping online gambling altogether, it did not actually make such activities illegal.  Rather, the legislation targeted the enforcement of gambling debts accrued online in a roundabout attempt to influence policy.  In Re Baum was the first court case to apply the new gaming statute, ruling that such gambling debts were not enforceable.  Although the court applied the law correctly to the given facts, this Note focuses on how the statute itself should be amended or repealed to avoid the undue burden it creates.