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SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL
Volume 28
Fall 2003
ARTICLES
THE ROLE OF LAW SCHOOLS IN IMPROVING ACCESS TO JUSTICE:
THE STORY OF THE SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF LAW AND THE FAMILY
MEDIATION PROGRAM
Suzanne J. Schmitz . . . . . . . . . .
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. . . . . . . . . . . . . . . . . . . . . . . . .1 Law schools across the county can significantly
contribute to improving the public’s access to the justice system. Improving
the public’s access to the justice system helps to ensure that equal justice
is enjoyed by all classes of people. One way to provide equal justice
to all is through a cooperative effort among academia, courts, and
practitioners. A prime example of one such cooperative effort is that of the
Southern Illinois University School of Law and the First Judicial Circuit of
Illinois, which collaborated to create the First Judicial Circuit
Court-Referred Family Mediation Program. The Southern Illinois University
School of Law has assisted the First Judicial Circuit Court-Referred Family
Mediation Program in numerous ways since its inception. This article will
discuss these contributions in the hope of encouraging other law schools and
their faculty members to work toward the creation of a more equal justice
system. Articles Editor, Sarah Holsapple.
MIXED UP QUESTIONS OF FACT AND LAW: ILLINOIS STANDARDS OF APPELLATE REVIEW IN CIVIL CASES FOLLOWING THE 1997 AMENDMENT TO SUPREME COURT RULE 341
Kathleen L. Coles
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A recent line of Illinois Supreme Court decisions has
announced a new "clearly erroneous" standard of appellate review for findings of "
mixed questions" of fact and law by Illinois administrative agencies. The new
state standard is based on the federal standard of review for findings of fact by
federal district court judges. After providing an overview and comparison of federal and
state standards of review in civil cases, this article examines and analyzes
the process by which the new Illinois standard of review for mixed questions was
developed; discusses the uncertainties surrounding the new rule’s source, scope,
and application; and recommends clarification of the source and scope of the
new rule and more explicit use of a "functional" approach to the process of
selecting and explaining standards of review. The analysis and discussion takes
place against the backdrop of Illinois Supreme Court Rule 341, which was amended in
1997 to focus more attention on the issue of standards of review. Articles
Editor, Michael Murphy.
NATIONAL AGLAW CENTER RESEARCH ARTICLE, J.E.M. AG SUPPLY,
INC. V. PIONEER HI-BRED INTERNATIONAL, INC.: ITS MEANING AND SIGNIFICANCE FOR THE AGRICULTURAL COMMUNITY
Michael T. Roberts
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. . 91
Biotechnology development in agriculture has raised
challenging intellectual property issues. These issues are framed in the context
of a three-prong plant patent statutory scheme, involving the Utility
Patent Act, the Plant Variety Protection Act, and the Plant Patent Act. The
agricultural community, which includes agricultural biotechnology
companies, seed companies, and agricultural producers, has debated
whether utility patents are excluded from the scope of the Utility Patent Act.
Producers contended that Congress superceded the Utility Patent Act when it
created the Plant Variety Protection Act and the Plant Patent Act and that sexually
reproducing plants (seeds and seed grown plants) are protected exclusively
by federal law under the provisions of the Plant Variety Protection Act. Seed
companies, on the other hand, retorted that sexually reproducing plants are
within the scope of the Utility Patent Act and that neither the Plant
Protection Act nor the Plant Variety Protection Act superceded the Utility
Patent Act. The dispute was resolved in December 2001, by the United States
Supreme Court in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International,
holding that utility patents may be issued for plants under the Utility Patent Act,
despite distinct protections available under the Plant Variety Protection
Act and the Plant Protection Act. This article outlines the factual,
procedural, and legal background of the dispute in J.E.M. and explains
the rationale and scope of the Supreme Court’s decision. This article also addresses
the meaning and significance of the decision to the agricultural
community. Articles Editors, Matt Morris & Joe Rupcich.
COMMENTS
ABUSING A LIMITLESS POWER: EXECUTIVE CLEMENCY IN ILLINOIS
Joseph N. Rupcich . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 131
In January 2003, Illinois Governor George Ryan commuted
the sentence of every person on Illinois’ death row, changing the majority of
their sentences to life imprisonment. He was able to do this because, in
Illinois, decisions to use the clemency power are left solely to the governor’s
discretion. In addition to drawing criticism from prosecutors, victims’ families,
and death penalty proponents, the blanket commutation raises questions
about executive clemency in Illinois. This comment suggests that, because
Illinois’ executive clemency scheme is prone to abuse, the Illinois General Assembly
should amend the constitution to reduce the possibility of abuse in the
future. To determine how to change the constitution, this comment examines various
states’ clemency schemes in light of their loyalty to the purpose of
clemency and their potential for abuse. Articles Editor, Becky A. Ray
LOOSE LIPS SINK SHIPS: THE IMPLICATIONS OF A LIBERAL
POLICY RESTRICTING JUDICIAL SPEECH
Katie A. Whitehead .
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The trend of courts to invalidate restrictions on
judicial speech and the growing funds of campaigns in judicial elections threatens the
integrity of the judiciary. The United States Supreme Court, in Republican Party
of Minnesota v. White, found the restriction on a judicial candidate announcing
his or her views on disputed legal or political issues unconstitutional.
Without the "announce clause," judicial candidates are free to state their views on
political issues because other restrictions on judicial speech can be circumvented. This
comment suggests that a state’s compelling interest in preserving an impartial
judiciary overrides judicial freedom of unfettered speech. In solution to the impending problems facing the judiciary, the author proposes that Illinois re-establish
a strict policy restricting judicial speech by implementing the "announce clause"
into its Code of Judicial Conduct. Articles Editor, Becky A. Ray.
CASENOTES
CASTING A SHADOW ON ILLINOIS’ SUNSHINE LAWS:
RICE V. BOARD OFTRUSTEES,
762 N.E.2d 1205 (Ill. App. Ct. 2002)
Charles D. Mockbee IV
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In Rice v. Board of Trustees, the Fourth District
of Illinois held that Illinois’ Sunshine laws forbid public bodies in Illinois from
taking action at their meetings on any matter not specifically named in the
posted agenda for that meeting. Using a narrow process of statutory
interpretation, the Rice court found the agenda item, New Business, did not allow
for enough advance notice to the public. Defining section 2.02(a) of the Illinois
Open Meetings Act’s use of the word "consideration," Rice also decided
that the Act permitted only discussion of new topics at public meetings, but not
action upon those new items. This Casenote argues if the Rice court had
applied those same principles of statutory interpretation in a broader sense
and applied other factors such as public business efficiency, substantial compliance with the Illinois Open Meetings Act, and future problems, a more
reasoned and appropriate outcome could have been achieved. This
Casenote contends that the Illinois Open Meetings Act’s use of the word "consideration" should include taking action, and the agenda item, New
Business, does provide enough advance notice to the public. Articles Editor, Becky
A. Ray.
DAMAGES FOR INCREASED RISK OF FUTURE INJURY: CAN ILLINOIS
COURTS SEE INTO THE FUTURE?
DILLON V. EVANSTON HOSPITAL,
771 N.E.2d 357 (Ill. 2002)
J. Brian Manion . . . . .
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In Dillon v. Evanston Hospital, the Illinois
Supreme Court resolved a split among the Illinois Appellate Courts by holding a tort plaintiff
may recover damages for an increased risk of future injury which is not
reasonably certain to occur, but the damages must reflect the low probability of the injury
actually occurring. First, the author argues that the implication of court’s
decision in Dillon to limit its holding to cases where the feared future injury is not reasonably certain to occur is that plaintiffs will be overcompensated and defendants
will be over-deterred. Second, the author examines the possibility of splitting
causes of action to allow a plaintiff to file a new law suit if a feared future
injury actually occurs. Articles Editor, Becky A. Ray.
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