SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL

ARTICLES

Introduction to the Immigration Matters Symposium
Cindy G. Buys .......................................................................................................................................................................................................................................................................................1

The September 11 Immigration Detentions and Unconstitutional Executive Legislation
Raquel Aldana ......................................................................................................................................................................................................................................................................................5
The United States government waged the war on terror in response to the tragic events that occurred on September 11, 2001. As part of the domestic war on terror, the U.S. government has detained thousands of civilians, a majority of whom are foreign nationals from Arab and Middle Eastern countries. This article focuses on the Constitutionality of these detentions and, in so doing, asserts that the United States, and specifically Attorney General John Ashcroft, created executive powers that facilitate the detentions of the foreign nationals through the use of constitutionally impermissible means. In reaching this conclusion, this article enters into a detailed examination of the regulations and rationales used to justify the September 11 detentions. Articles Editor, Adam Alstott

The Rhetoric of Reform: NonCitizen Workers in the United States
Enid Trucios-Haynes .........................................................................................................................................................................................................................................................................43
To what extent should temporary noncitizen worker programs limit the employment of noncitizen workers? To foster an understanding of this issue, this article discusses immigration law reform after September 11, 2001, the changing public view of noncitizen workers who are temporarily employed in the United States, and the economic impact of temporary noncitizen workers. The economic impact of noncitizen workers on the United States has become misunderstood by the general public for many reasons including misinformation about temporary worker visas, confusion over what a “guestworker program” is, and misinformation about the displacement of U.S. citizen workers by noncitizen workers. The article also considers the role of the media in fostering such misinformation and the issue of outsourcing. The main focus is a discussion of the L-1 and H-1B temporary worker visa categories. The L-1 is an intracompany transferee visa and the H-1B is a specialty occupation visa. The discussion contemplates the evolution of these visa categories, the benefits and criticisms of each, potential misuse of these visa categories and the harm caused thereby, corrective measures being used, and discussions in Congress. The author concludes by noting that current reform proposals greatly limit the use of these temporary noncitizen worker visas. For example, the U.S.A. Jobs Protection Act Bill would require U.S. employers to show that they have made good faith efforts to recruit U.S. citizens before submitting L-1 visa petitions. Such initiatives will only limit employment opportunities for noncitizens. Articles Editor, Jill R. Atkins-Burgess

IMMIGRANTS, COPS AND SLUMLORDS IN THE MIDWEST
Guadalupe T. Luna .............................................................................................................................................................................................................................................................................61
The Midwest has recently seen an influx of Latino immigrants who find employment in low wage sectors and also face poor housing and rental conditions. Upon arrival in the country, these immigrants have few opportunities and are forced to rent substandard housing in segregated and over-crowded communities. There is a general lack of governmental attention with the issues facing these immigrants. The author here recognizes two issues primarily in regulation of landlords who provide unsound housing and local housing ordinance law that targets minorities. This article provides an overview of the immigrant presence in the Midwest and the disparity issues affecting metro and nonmetro communities. It also looks at discriminatory housing complaints affecting the Latino community and the authorities dealing with them as a whole. Finally, the author provides an alternative template to improve landlord tenant principles for immigrants and promote their privacy interests. Articles Editor, Kathleen T. McCarthy

More Than a License to Drive: State Restrictions on the Use of Driver’s Licenses by Noncitizens
María Pabón López ...........................................................................................................................................................................................................................................................................89
In recent years, the issuance of driver’s licenses to noncitizens has become an anti-immigrant battleground, whereby noncitizens are excluded from obtaining a driver’s license in many, if not most, states. This is often the case because they are undocumented, but it is also the case in some circumstances even if they are legally present in the United States. This Article assesses and narrates the current situation regarding states driver’s licensing of noncitizens, both before and after September 11, 2001, and reviews the current state driver’s legislative schemes pertaining to noncitizens. The Article then establishes an original tripartite typology of these legislative schemes based on the legal standards employed by the states to grant or deny to noncitizens a license to drive. The Article further analyzes the driver’s licensing schemes that restrict noncitizens from obtaining driver’s licenses as a form of social control of the noncitizens under the theories of discipline and punishment of Michel Foucault. Using the Foucaldian frame of reference that the driver’s license restrictions are a form of social control of the noncitizen, as well as the original typology, the Article considers whether the three types of driver’s licensing schemes restricting noncitizens from obtaining licenses in the states are constitutional under the Equal Protection Clause. The Article also traces the historical development of the automobile and the use of the driver’s license in the United States to show the importance of driving in our country, as well as the use of the driver’s license as a de facto identification card in the United States. The Article concludes by addressing the desirability and viability of existing specific proposals regarding the driver’s license dilemma of “documenting the undocumented” and suggesting further approaches to the current situation. The Article finally posits that the state law political battleground regarding driver’s licensing for noncitizens responds to a status conflict currently raging in our country. Articles Editor, Kylie Polson.
 

COMMENTS

Ensuring Competent and Effective Mediators in Illinois: Uniform Qualifications and Consumer Education
Kylie K. Polson ................................................................................................................................................................................................................................................................................129
As Alternative Dispute Resolution becomes a widely used form of resolving disputes without resorting to litigation, mediation is becoming important to the legal field. Effective mediations require competent mediators with the experience and education to assist the parties in coming to an agreeable solution. This comment focuses on establishing mediator qualifications, or, alternatively, educating the consuming public about selecting a qualified mediator. This comment proposes two alternatives for accomplishing these goals: an Illinois Supreme Court Rule regarding certification of mediators or a detailed consumer guide provided to disputing parties to educate them on choosing a competent mediator for their dispute. Articles Editor, Nicole Batchelor

CASENOTES

Video Biography Gets All Shook Up: Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003)
Krissi Geary ....................................................................................................................................................................................................................................................................................149
The popularity of rock documentaries flourished in the 1960s and 1970s when such biographies debuted as theatrical releases. Today, documentarians more commonly release their works as television shows or home videos, such as the one at issue in Elvis Presley Enterprises, Inc. v. Passport Video. The central issue in this Ninth Circuit case involved the amount of copyrighted materials a video biographer may use without permission in a biography about a celebrity. While years of jurisprudence have established some fair use guidelines for print biographies, only a few courts have examined fair use in video biographies. While the district courts in the Second Circuit have generally found in favor of video biographers, the Ninth Circuit found the unauthorized use of copyrighted materials in this biography violated the fair use doctrine codified in the Copyright Act. This Casenote examines the legal background of biographies, the application of the fair use doctrine to such works, and how this decision will negatively impact video biographers in the future. Requiring video biographers to obtain permission for the use of all copyrighted materials or risk injunctions against their works could result in the production of fewer documentaries. Furthermore, the decision could reach beyond biographies to other areas, such as websites dedicated to celebrities that integrate biographical information and copyrighted works. This Casenote argues that the decision upsets the delicate balance copyright law provides between the creator’s interest and the public’s interest in the distribution of creative works.