SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL
Volume 29 |
Winter 2005 |
ARTICLES
Ronald Z. Domsky ........................................................................................................................................................................................................................................................................207
Disinheriting a spouse has become an increasingly frequent request for estate planning lawyers as the so called "traditional family" has faded into the past. This practitioner oriented article informs lawyers about the different techniques and devices that can accomplish a client’s desire to disinherit a spouse. The article specifically analyzes the premarital agreement as the most effective tool for disinheriting a spouse, including many practitioner hints to assure the premarital agreement is valid and effective when it is triggered. Also, this article examines how lawyers can still accomplish their client’s goals when a premarital agreement was not executed. Secondly, this article throughly examines the surviving spouses rights under inheritance laws specifically surrounding the inter vivos trust whereby, if executed correctly, a client can effectively disinherit a spouse by removing assets from the client’s probate estate, from which the surviving spouses share is determined. Further, the courts consider a variety of factors when considering a surviving spouses claim of fraud in the disinheritance and the article examines each. Articles editors, Kenneth B. Baron and Justin M. Bathan
Drug Companies, Dollars, and the Shaping of American Medical Practice
Marshall B. Kapp, J.D., M.P.H., FCLM ......................................................................................................................................................................................................................................237
Medical practitioners frequently find it difficult to make medical decisions free from the mounting influence placed upon them by pharmaceutical companies. Medical practitioners are subjected to influence through various gift giving, education sponsorship and paid speaking. The author acknowledges that a total divorce of the two industries is probably not socially desirable. The author, however, opines that with this influence now exposed to drug companies, physician, academic health centers, patients, and the public it may have the effect of causing reconsideration and a reshaping of the paths fo medical knowledge, which will result in continuous improvement in the quality of health care. Articles editor, Douglas B. Keane
Beth Lyon .......................................................................................................................................................................................................................................................................................263
This essay is the published version of Professor Beth Lyon’s presentation at the Southern Illinois University School of Law Immigration Maters Conference. The first goal of the essay is to highlight Illinois state laws that disfavor farm workers and to argue that they merit reconsideration. The essay’s second purpose is to suggest how the legal academy can become involved with law reform and service to farm workers, and why such efforts are pedagogically desirable. The essay begins by describing the demographics and situation of farm workers (Section II). It then provides an overview of the federal and state laws that discriminate against farm workers (Section II). It then provides an overview of the federal and state laws that discriminate against farm workers (Section III). The essay then suggests reforms for improving four Illinois laws that disadvantage farm workers (Section IV), as well as opportunities for the legal academy to involve itself with this community (Section V). Article Editor, Dan Lee
Craig B. Mousin .............................................................................................................................................................................................................................................................................285
As part of the response to the threat of terrorism, recent legislation in Congress has proposed to require local and state police departments to enforce federal immigration laws. This proposed legislation would compel local and state authorities to enforce both criminal and civil violations of federal immigration law, with the threat of lost federal funding if cities or states refuse to comply. This article examines two previous responses Illinois has made towards attempts by the federal government to engage state and local authorities in the enforcement of federal law. The author looks first to Mayor Harold Washington’s Executive Order 85-1, which prohibited Chicago police and Chicago city agencies from cooperating with the Immigration and Naturalization Service. He then examines Chicago’s response to the Fugitive Slave Act of 1850, a resolution of the Chicago Common Council, which prohibited the Chicago police and Chicago officials from assisting enforcement of the Act. He argues that these two Illinois responses show a model for how we best enhance national security, while limiting the negative impact to non-citizens, their families, and their communities. Articles Editor, Scott LeRoy Terry
COMMENTS
The Regulation of Indecent Material in Modern Popular Culture
Jill Atkins .........................................................................................................................................................................................................................................................................................317
The First Amendment to the United States Constitution provides, "Congress shall make no law . . . abridging the freedom of speech . . . ." However, the United States Supreme Court affords specific categories of speech constitutional protection, while determining other types of speech do not warrant the safeguards of the First Amendment. Indecent speech is usually a protected category, however, the Court sometimes chooses to review government regulations of indecent speech depending on whether the statute in question affects a government-subsidized activity or privately-funded activity. The Court generally declines to apply strict scrutiny when there is a government-funded activity involved, as opposed to privately-funded activities, where the strict scrutiny analysis is usually set forth. This Comment examines four statutes aimed at regulating indecent speech, including on the World Wide Web, cable television, and in the fine arts. This Comment argues there should be a single standard of review for content-based regulations of indecency, regardless whether a government subsidy or private funding regulation is at issue.
The Sarbanes)Oxley Act of 2002: The Ripple Effects of Restoring Shareholder Confidence
J. Brent Wilkins ............................................................................................................................................................................................................................................................................339
In 2002, the United States Congress enacted the Sarbanes-Oxley Act, one of the most far-reaching corporate regulations ever passed. This legislation was a response to some of the largest corporate scandals and frauds the United States had ever seen. These scandals resulted in the bankruptcies of giants such as Enron and WorldCom, and ultimately led to enormous losses for investors. The Sarbanes-Oxley Act was ratified to protect investors from such future scandals by improving the reliability of corporate disclosures. This Comment focuses on the added burden this legislation places on all publicly traded companies, and how this burden may discourage those private companies contemplating going public from doing just that. Although some reforms may be needed to dissuade the urge of some companies to defraud their shareholders, these reforms should not be so broad as to act as a disincentive for companies to participate in the public equity markets in the United States. This author advocates an election option for those companies under Sarbanes-Oxley. Under this option, a company can elect whether or not to comply with the provisions of the Act. This would allow a company to make a business decision at the business level, allowing it to conduct a cost-benefit analysis to see if it would be worth the time and money to follow the Sarbanes-Oxley provisions. This flexibility will also be attractive to private companies intending to enter the public markets. Any decision concerning compliance with the Sarbanes-Oxley Act would be reflected in the share price of the company, allowing information to reach the public through the market price it would pay. Ultimately, this election option would allow the business to allocate its resources more efficiently, whether it be in expansion and increased research and development, or in Sarbanes-Oxley compliance.
CASENOTES
Jason D. Johnson ........................................................................................................................................................................................................................................................................361
In Maryland v. Pringle, 124 S. Ct. 795 (2003) the United States Supreme Court held that there was probable cause to arrest a passenger in a car for possession of cocaine hidden in the car, even though there were two other occupants in the car and no evidence existed to single out any of the occupants as the exclusive owner of the cocaine. This casenote argues that the Supreme Court effectively eliminated the individualized suspicion requirement of previous cases, even though it did not explicitly overrule the line of cases. The author contends that the Supreme Court reaffirmed the totality of the circumstances as the exclusive test to use in determining probable cause. The author also asserts that this case was a reminder by the Supreme Court to lower courts that no defined standard can be used in determining probable cause and courts should be cautious when attempting to compare facts of a present case to those in a previous case.
Scott LeRoy Terry .......................................................................................................................................................................................................................................................................379
In Bajwa v. Metropolitan Life Insurance Company, the Illinois Supreme Court recognized a cause of action for negligent issuance of a life insurance policy where the insured lacks knowledge of the policy on his life and never consents to its issuance. First, the author argues that imposition of a duty on insurance carriers should be based on statutory or regulatory provisions that deal with the knowledge and consent of the insured, before moving onto traditional analysis of whether a duty exists. Second, the author contends that the proper standard of care should be analogous to other professional malpractice cases, and, therefore, the use of expert testimony may be necessary to prove negligent issuance of life insurance claims.