SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL

Volume 27                                                         Fall 2002

Although courts seem to mystically rely upon mental-health professional expert opinion testimony as a basis for child-custody determinations, the foundation for such expert evidence is generally weak and lacking. For instance, no research exists to support the proposition that mental-health professional expert guided child-custody placements are better than those lacking the benefit of expert opinion, and, generally, mental-health professionals have no scientific research to guide them in making evaluations concerning numerous factors relative to the determination of a child’s best interest. Because most mental-health professional expert testimony is only minimally grounded in research, it is often largely based on the expert’s unverifiable observations and experiences. As such, the expert’s testimony is often filled with the inherent unreliability of clinical judgement and decision-making. The legal standards for the admissibility of such expert evidence in Illinois are of vital concern to litigators, judges, and the children of divorcing parents. This article dissects the evolution, and inconsistent application, of admissibility law of scientific evidence in Illinois, which has resulted in the use of no less than four different standards of legal admissibility. The current state of legal chaos in Illinois regarding the standards of admissibility for scientific evidence has permitted bad science to make bad law, and has jeopardized both the reasonableness and sanity of child-custody decisions. The authors conclude that the principles of revised Federal Rule of Evidence 702 ought to guide admissibility of mental-health professional  expert opinion testimony in Illinois child-custody cases, and urge its adoption. Articles Editors, Brandy Glasser & Elizabeth Tison.

To what extent should an employer be able to obtain insurance to cover his or her own Title VII violations? To understand the complexity of this question, one must understand the purpose of Title VII, the competing policy arguments in allowing insurance companies to assume the risk of loss for Title VII violations, how courts have dealt with these competing interests, and how insurance companies and employers have structured their relationships over the years. This article begins by exploring the purpose of Title VII, the types of discrimination claims that arise under this Act, and the general purpose of insurance policies particular to discrimination claims. The article then examines the competing policy arguments and the current law that courts have handed down in an attempt to deal with these competing interests. After providing this backdrop, the authors argue that the purpose of Title VII and the competing policy arguments can be satisfied by holding the employer liable for his or her own intentional conduct, but allowing insurance coverage only when there is a catastrophic intentional discrimination claim and the employer demonstrates, that without the benefit of insurance coverage, it will be forced into bankruptcy as a result of compensating the innocent victim. Articles Editor, Chris Wetzel.

Technological developments in electronic surveillance, evidence testing, police weaponry, and other areas create issues affecting constitutional rights that were never anticipated by the Constitution's authors . When interpreting the constitutionality of new technological applications in the criminal justice system, contemporary judges must avoid the pitfalls of either presuming that new technologies are beneficial or rationalizing the maintenance of the status quo. In discussing these issues, this article highlights emerging questions about individual rights by examining the intersection of technological development and constitutional interpretation in criminal justice. Article Editor, Brian Stalets.

Advances in technology have led to changes in the way society conducts business. Computers have become commonplace for the creation, transmission, and storage of information. A major problem with conducting business using electronic means is that it violates the statutory requirements known as the "St atute of Frauds," which require "writings" and "signatures" for legal effectiveness. To solve this problem, the Illinois legislature passed the Illinois Electronic Commerce Security Act, giving electronic records and electronic signatures legal effectiveness when writings or signatures were otherwise required. Thereafter, the federal government passed the Electronic Signatures in Global and National Commerce Act (E-SIGN). The purpose of E-SIGN was much the same as the Illinois Act, i.e. to give electronic records and electronic signatures legal effectiveness. However, E-SIGN preempts any state law that does not meet its specific requirements as laid out in 15 U.S.C. § 7002(a). This article discusses whether E-SIGN preempts the Illinois Act and concludes that Illinois Act is preempted by E-SIGN to the extent it lacks consumer consent requirements. Thus, the Illinois Act governs transactions dealing with electronic records and electronic signatures with the addition of E-SIGN’s consumer consent requirement.

In Ferguson v. Charleston, the United States Supreme Court invalidated a warrantless, suspicionless drug testing policy enacted by a state hospital in South Carolina. The Court held the policy violated patient’s Fourth Amendment right to protection from unreasonable search and seizure. The Court also found the policy too inextricably intertwined with law enforcement purposes to be justified under the doctrine of "special needs." This casenote contends the Court correctly decided this case, but argues that its critical evaluation and subsequent balancing of the doctrinal elements of special need were lacking.

Prior to Barnes v. Gorman, the appellate courts were split on the issue of whether § 504 permitted the recovery of punitive damages for intentional violations of the Rehabilitation Act of 1973. In 1996, the Sixth Circuit held that punitive damages were not recoverable under § 504, and in 2001, the Eighth Circuit held that punitive damages could be recovered under § 504. These irreconcilable holdings prompted the Supreme Court to clarify the issue. In Barnes v. Gorman, the Supreme Court held that punitive damages were not permitted under § 504, thus reversing the Eighth Circuit. The author opines that based on Congressional intent, the rationales behind punitive damages and public policy, the Supreme Court erred in its analysis.

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