ARTICLES

THE CELOTEX INITIAL BURDEN STANDARD AND AN OPPORTUNITY
TO AREVIVIFY RULE 56
Brooke D. Coleman ..............................................................................................................................................................................................................................................................................295
This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data─a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court─to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden standard have not accurately predicted how defendants would respond to the change and that those who support it, while not completely vindicated in their views of the overall system, are correct in arguing that other procedural rules cabin defendants' actions. Using these results, this article calls into question how we respond to changes in procedural rules. It argues that the mistaken responses to Celotex are due to a failure to account for the complexity of modern federal litigation when evaluating procedure. Moreover, it argues that such an atomistic approach can adversely affect the way the rules are drafted and amended. Procedural rule cannot be viewed in a vacuum. The article asserts that the rules are a part of a sophisticated process with different interests (attorney fees, judicial ethos, party preferences, etc.) at play; to draft, amend, or critique the rules without an appreciation of these other real-world consideration is to do them a great disservice. Articles Editors: Ryan Straw and Amy R. Ragan.

SCHOOL NEGLIGENCE CASE LAW TRENDS
Perry A. Zirkel and John H. Clark ........................................................................................................................................................................................................................................................345
Filling the gap in the literature with regard to school negligence, this article provides an empirical analysis of the trends in the frequency and outcomes of published decisions of student-initiated negligence claims in k-12 public schools during the 15-year period 1990B2005. The major findings were that─contrary to common characterizations─the frequency of such decisions remained relatively stable and that the outcomes overwhelming favored district defendants. Articles Editor: J. Matthew Thompson.

THE RELIANCE INTEREST IN RESTITUTION
Aaron R. Petty .........................................................................................................................................................................................................................................................................................365
This article argues that courts have extended the concept of restitution as a basis for recovery to include reliance interests of the plaintiff. Courts routinely award restitutionary damages to plaintiffs on unenforceable contracts when the defendant does not retain any material benefit conferred on it by the plaintiff. The contract cannot be the basis of liability as it is unenforceable, and restitution (as currently understood) cannot be the basis of liability if the defendant is not benefited by the performance. The article concludes that courts are applying reliance principles in a restitutionary context, although failing to acknowledge that they are extending the law of restitution to situations that do not require the defendant to benefit from performance.
Recognition of this reliance interest in restitution would yield several important results. The first is that recognition would bolster the arguments of the so-called Amulticausalists@ who believe that restitution responds to more than unjust enrichment in their ongoing debate with the so-called Aquadrationists@ who believe that restitution is limited to the remedy for unjust enrichment. The outcome of this debate will likely influence the law of restitution for decades as the Restatement (Ghird) of Restitution and Unjust Enrichment is nearing completion. Secondly, recognizing a reliance interest in restitution offers a solution to this dilemma without having to either fictionalize the restitution's benefit requirement or abandon it altogether. Finally, improving both terminological clarity and conceptual consistency may make restitution a more accessible and functional body of law for lawyers, judges and students. Articles Editors: Andrew J. Fisk.

COMMENTS

LIMITING JOINT EMPLOYMENT UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993
Luke M. DeSmet ....................................................................................................................................................................................................................................................................................403
The doctrine of joint employment recognizes that some individuals may be jointly employed, and thus have their work activities controlled by more than one employer at the same time. In their effort to give effect to the expansive view of employment under the Fair Labor Standards Act, courts have generally construed joint employment liberally making many employees jointly employed. The doctrine of joint employment gives rise to unique concerns in the context of the Family and Medical Leave Act. As a result of the FMLA's employee threshold for applicability, employers could find themselves subject to the requirements of the Act by unintentionally jointly employing a number of employees sufficient to rise above the Act's threshold applicability.
This comment argues that the joint employment doctrine should be construed more narrowly under the FMLA to avoid subjecting otherwise small businesses to the requirements of the Act. Congress specifically intended to limit the reach of the FMLA and limited the reach of the joint employment doctrine will help accomplish. To this end, the comment proposes a new test for joint employment to be applied in the FMLA context to avoid unfair application of the doctrine to otherwise small businesses.

REMOVING THE TAINT: THE BATTLE FOR INTELLIGENT DESIGN IN THE CLASSROOM
Amber N. Jeralds ...................................................................................................................................................................................................................................................................................425
In 2005 the Dover Area School District implemented an intelligent design section as part of its science curriculum and the battle over intelligent design in the classroom began. In its rather lengthy opinion, the court dealt intelligent design a serious blow by claiming it was tainted by its creationist history and the school board member's religious statements. Intelligent design lost its first battle in Dover and continues to lose battles in classrooms across America leaving many wondering whether intelligent design can ever overcome the taint of its prior history.
This comment argues that intelligent design can overcome the taint of its prior history and be taught within the framework of the Establishment Clause. By reviewing the legal history surrounding science education, this comment seeks to determine and analyze the possible obstacles that intelligent design will have to overcome in its pursuit to be included in an established science curriculum. Finally, this comment reviews a possible strategy for implementing intelligent design in the classroom.

CASENOTES

THE KNOCK AND ANNOUNCE RULE: MORE TROUBLE THAN IT IS WORTH
Ryan Straw ..............................................................................................................................................................................................................................................................................................447
The Supreme Court in Hudson v. Michigan held that a violation of the knock and announce rule does not require evidence obtained in the ensuing search to be suppressed by means of the exclusionary rule. This holding eliminated any effective deterrence preventing law enforcement from violating the knock and announce rule. However, this casenote argues that police have little incentive to violate it, and there is no meaningful method of enforcing the rule anyway.
Furthermore, the government intrusion is minimal, and the safety of the officers, as well as everyone involved, is better protected by allowing law enforcement to exercise complete control over the situation. For these reasons there is no need to salvage the rule, and it should be repealed.

IT'S POLITICAL, YOU CAN'T BE OFFENDED! A DISCUSSION OF THE STUDENT SPEECH ANALYSIS IN GUILES EX. REL. GUILES V. MARINEAU, 461 F.3D 320 (2D CIR. 2006)
Derek Ruzicka ........................................................................................................................................................................................................................................................................................469
This casenote presents student freedom of speech law as it stood in 2007 and analyzes the Second Circuit's application of that law. The casenote goes on to propose steps for dealing with student free speech issues to be used by school administrators in light of the confusing array of conflicting applications of such law. Ultimately, the article concludes that further development of the law is needed.