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SOUTHERN ILLINOIS UNIVERSITY ARTICLES OVER THE RIVER AND THROUGH THE WOODS─AGAIN: THE NEW ILLINOIS GRANDPARENT VISITATION ACT Michael K. Goldberg .................................................................................................................................... 403 In Wickham v. Byrne, the Illinois Supreme Court declared two provisions in the Illinois Grandparent Visitation Act unconstitutional. The former Act gave Illinois courts discretion to grant visitation to grandparents if it was in the best interests of the child. Following the United States Supreme Court case, Troxel v. Granville, the Illinois Supreme Court found the Illinois Act unconstitutionally interfered with a parent’s fundamental liberty interest in the care and control of their child. This article focuses on the amended Illinois Grandparent Visitation Act, which took effect in 2005. This article first examines the precedential decision of Troxel v. Granville, and its impact on the Illinois Supreme Court’s decision in Wickham. This article further compares various grandparent visitation statutes from around the United States in the wake of Troxel. The author concludes by summarizing the changes to grandparent visitation rights under the amended Illinois Act. Articles Editor, Jill Atkins UNITED STATES’ AUTHORITY TO LEGALLY IMPLEMENT THE SELF-DEFENSE AND ANTICIPATORY SELF-DEFENSE DOCTRINES TO ERADICATE THE THREAT POSED BY COUNTRIES HARBORING TERRORISTS AND PRODUCING WEAPONS OF MASS DESTRUCTION Robert A. Zayac, Jr. ................................................................................................................................... 433 Since September 11, 2001, terrorist groups and weapons of mass destructions pose a great threat to the safety of the American citizens. Although the United States can use non-force alternatives in lieu of self-defense to stop these threatening situations, countries has repeatedly disregarded and ignored these efforts. As a result, the United States is justified in using force to eradicate terrorists and weapons of mass destruction. Short of declaring war against nations harboring terrorist groups or producing weapons of mass destruction, the United States has two meaningful options; self-defense and anticipatory self-defense. The United Nations recognizes self-defense as a method to stop threatening situations. Further, Article 51 of the United Nations Charter supports a States’ right to use self-defense to eliminate any threat posing harm to their country. To use self-defense, the threatening nation must commit an armed, active attack such as harboring terrorist groups. States producing weapons of mass destruction cannot be considered an armed attack because there is no active threat. As a result, the United States can use anticipatory self-defense to stop nations from producing weapons of mass destruction. Daniel Webster and other scholars have suggested that an armed attack is one of several factual bases that might permit defensive use of force. Israel has utilized anticipatory self-defense to invade other nations. Although these nations never invaded Israel, the buildup of arms and forces forced Israel to invade other nations because of the impending threat of an armed attack. Because of past acceptance, the United States by implementing the self-defense and anticipatory self-defense doctrines can legally enter other countries to protect its citizens and prevent and eliminate threatening situations. Articles Editor, Kenneth B. Baren COMMENTS THE ILLINOIS SEXUALLY DANGEROUS PERSONS ACT: THE CIVILLY COMMITTED AND THEIR FIFTH AMENDMENT RIGHTS, OR LACK THEREOF W. Wylie Blair ........................................................................................................................................ 461 As a result of the treatment program established in response to a directive of the Illinois Sexually Dangerous Persons Act, persons civilly committed after being found sexually dangerous by the Illinois courts are regularly forced to waive their Fifth Amendment privilege against self incrimination. Following waiver, they must disclose their full sexual history verified by polygraph test, which could potentially result in additional charges against them. Inmates who refuse to sign the waiver are not allowed to participate in the treatment program. Without treatment, there is little hope for recovery. Without recovery, there is little hope for release. The result is a quasi-life sentence at Big Muddy Correctional Facility, a predominantly penal facility. The sexually dangerous must obey prison rules and procedures and intermingle with other prisoners, despite the fact they have been convicted of no crime. To protect the constitutionally guaranteed privilege against self-incrimination, this comment proposes the Act be revised to include an immunity clause for any admissions made during treatment or, alternatively, the structure of the treatment program itself be changed to eliminate the self-accusatory features. TRIBUTE BANDS: FLATTERING IMITATORS OR FLAGRANT INFRINGERS Krissi Geary .......................................................................................................................................... 481 Tribute bands have experienced a surge in popularity in recent years from their humble beginnings in the 1970s. While the genre originally included only imitators of either deceased or disbanded artists, now clones to newer artists are also taking the stage. Rising concert ticket prices and costs associated with hosting original artists will only fuel the current market for tribute bands. Accuracy in imitation provides the measure of success for tribute bands; however, this accuracy in replicating a band’s persona also implicates the publicity rights of the original artists. By imitating the original artists to near perfection, tribute bands essentially make a living off of the personas made famous and lucrative by their predecessors. This article examines whether tribute bands violate the original artists’ rights of publicity and whether the bands whose personas are copied have legal recourse. While publicity rights are usually applied to cases involving advertising, a strong case exists to apply these same rights to disputes regarding the commercial profits made by tribute bands. CASENOTES DEFINING “PARTIES AGGRIEVED” UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT: SHOULD PARENTS BE ALLOWED TO REPRESENT THEIR DISABLED CHILD WITHOUT AN ATTORNEY? Maroni v. Pemi-Baker Regional School District, 346 F.3d 247 (1st Cir. 2003) Justin M. Bathon .................................................................................................................................. 507 Maroni v. Pemi-Baker is the latest in a line of cases that are questioning the ability of parents to represent their special education children pro se in judicial appeals from administrative hearings. Presently, federal circuit courts have concluded parents can represent their disabled children pro se, parents cannot represent their disabled children pro se, and parents can pro se represent their special education children in procedural IDEA claims, but not substantive IDEA claims. This casenote follows the Maroni decision focusing on the “party aggrieved” language of the IDEA. Stemming from the plain meaning of “party aggrieved,” parents should be given the right to appeal pro se from administrative hearings, especially when one considers the policy context of these special education cases and the possibility that disallowing these pro se parents would cause hundreds of legitimate claims under the IDEA to go unrepresented, and thus unprotected. THE EFFECT OF IN RE DEVON M. ON THE ILLINOIS PARENTAGE ACT AND ILLINOIS PUBLIC POLICY: In Re Devon M.,801 N.E.2d 128 (Ill. App. Ct. 2003) Crystal M. Pipher .............................................................................................................................. 531 Before In Re Devon M., Illinois courts had little guidance in interpreting the “rights of others and the interests of justice” limitation on the Illinois Parentage Act’s provision allowing “paternity as a sanction” for putative fathers who refused to submit to court-ordered paternity testing. However, this Illinois Appellate Court case made it clear that the best interests of the child standard should be applied before ordering a violator to be the default father of a child who would be adversely impacted by having this man ordered into his or her life. This decision was the most appropriate move for the court make in protecting the interests of the children involved. However, a problem that follows from the Devon M. decision is how to get putative fathers to comply with the court order for testing without using paternity as a sanction. In Section II, this casenote explores the background of the Illinois Parentage Act and other states’ parentage acts and how their respective courts have interpreted the “rights of others and the interests of justice” language. Section III lays out the facts, legal considerations, and holding of the Devon M. case. Section IV discusses the impact of the case on the Illinois Parentage Act and Illinois public policy and issues for the future. Two major issues for the future include when the “rights of others and interests of justice” preclude a default paternity judgement and other enforcement options for courts who are faced with a putative father who refuses to comply with a court-ordered paternity test. Finally, Section V concludes that everyone involved in the paternity dispute, most notably the children, will be well served by the policies laid out by the court in In Re Devon M. remains a viable basis for the collection of attorney’s fees. The Catalyst Theory: Before and After BUCKHANNON AND SIERRA CLUB: Sierra Club v. Environmental Protection Agency, 322 F.3d 718 (D.C. Cir. 2003) Joseph Ponitz ............................................................................................................................... 549 In Sierra Club v. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia Circuit held that the catalyst theory remains a viable basis for the collection of attorney’s fees in fee-shifting statutes using “whenever . . . appropriate” language. However, presently two United States Supreme Court cases are in conflict concerning the circumstances under which a court can award attorney’s fees pursuant to the catalyst theory. In Sierra Club, the court acknowledged that Supreme Court review may be necessary to resolve this conflict. This casenote contends that the United States Court of Appeals for the District of Columbia Circuit correctly decided this case, but argues that the United States Supreme Court should have granted the Environmental Protection Agency’s petition for writ of certiorari. The United States Supreme Court could have provided a bright-line interpretation as to the exact circumstances where the catalyst theory remains a viable basis for the collection of attorney’s fees. |
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