Please join me in extending your congratulations to the following new Board members for the 2010-2011 academic year:

Editor-in-Chief:

Brian Langs

Managing Editor:

Laura Raatjes

Executive Notes and Comments Editor:

Andrew Jung

Executive Articles Editors:

Margaux Birdsall

Nicholas Cordell

Gregory Grattan

Stephen Gorski

Katherine Jahnke

Melissa Smith

Tanya Solis

Jerry Thomas

Stephanie Thommes

Come out and meet the rest of the staff. In particular, there will be plenty of opportunities to discuss positions available for the 3L year, as well as the upcoming election process.

To be on Law Review next year, you must decide what position you would like. There are two categories of positions:

Executive Board, consisting of:
1. Editor-in-Chief (EIC)
2. Managing Editor (ME)
3. Executive Notes and Comments Editor (ENCE)
4. 9 Executive Article Editors (EAEs)

Senior Staff, consisting of:
1. Notes and Comments Editors (NCEs)
2. Senior Associates (SAs)

PROCEDURE

Step 1: Gather as much information as you need to make an informed decision about what you want to do next year. You’ve probably picked up throughout the year what responsibilities the various positions entail. At the end of this document is a thorough description of all positions and responsibilities. It is likely, though, that you will have additional questions, so please feel free to contact any Law Review member for more information about his or her position. We are all happy to meet with you to talk to you about these positions.

Step 2: Applying for an Executive Board Position. If you decide that you want to run for an Executive Board Position, you must:

1. Email the Managing Editor, Ilana Bamberger (ibamberger@kentlaw.edu), with the position(s) that you would like to run for, and include an updated copy of your resume, by 5 PM Wednesday, February 17. Note, resumes must omit class rank, GPAs, and CALIs. Also, be sure to include the phone number at which you can be reached on Election Results Day.

2. Schedule an interview with the Executive Board for Sunday, February 21st. Starting Monday, February 1, we will have sign-up sheet posted in the Law Review office with the interview time slots. You must sign up by 5 PM Wednesday, February 17. Note, if you have a conflict with the interview day that cannot be avoided, please contact Ilana Bamberger immediately.

3. Interview with the Executive Board on Sunday, February 21st. The interview will likely last about 20-25 minutes. The entire Executive Board will interview each candidate. Business attire is appropriate.

Step 2 (continued): Applying for a Senior Staff position. If you decide that you only want to run for a Senior Staff Position, and not an Executive Board Position, you must:

Email the Executive Notes and Comment Editor, Brian Kaunelis (bkaunelis@kentlaw.edu), with the position that you would like to run for, and include a 300 word (minimum) explanation of why you are best suited for the position you choose, by 5 PM Wednesday, February 17. No resume is required. The Executive Notes and Comments Editor may demand to meet with and interview any applicants he so chooses prior to making any decisions.

Whether you are running for an Executive Board or Senior Staff position, we strongly encourage you to participate in the pre-election social on Thursday, February 18. The social will be a great opportunity for you to talk to current Senior Staff and Executive Board members about their positions, and make a good impression before Interview day. It also promises to be a good time! More details about this will follow.

Step 3: Election results. Tentatively, Executive Board and Senior Staff positions will be announced on Wednesday, February 24.

Step 4: Start fulfilling your new responsibilities. Depending on which position you end up in, your responsibilities may begin almost immediately. You will almost certainly want to work with the person who had your position this year to mentor you into your new responsibilities. In fact, you may be called on to act in your new role to a limited extent on our current issues to bring you up to speed. Be aware that most positions require significant time commitments over the summer (mostly in running the summer candidacy program, but there will also likely be cite checking and editing work to do).

Final Note: Law Review is a full year commitment. If you intend to continue with the Law Review next year as either an Executive Board or Senior Staff member, you must fulfill your responsibilities to the Law Review each semester, regardless of whether you have signed up for Law Review credit. Failure to do so will result disciplinary action with the faculty board.

Overview of Law Review Positions

Executive Board Positions

The Executive Board makes all major decisions affecting the Law Review, including the selection of staff, which student articles will be published, etc. The Executive Board consists of the Editor-in-Chief (David Freedman), the Managing Editor (Ilana Bamberger), the Executive Notes and Comments Editor (Brian Kaunelis), and the Executive Articles Editors (Michael Borella, Ryan Gibson, Sarah Kaplan, Adam Kreis, Jeff Mikrut, Carolyn Sorock, Elizabeth Thompson, Rue Toland, and Ben Wilensky).

In addition, some of the more detail-oriented or practical decisions are made by a committee that consists of the Editor-in-Chief, the Managing Editor, and the Executive Notes and Comments Editor. This would include such things as the rules for the Summer Candidacy Program.

Finally, the Law Review Oversight Committee consists of the Editor-in-Chief, the Managing Editor, and the Faculty Board (Professors Perritt, Nahmod, Warner, Marder, and Schmidt) who act as advisors to the Law Review. The Committee’s principal responsibility is to select the symposia for the following year.

Senior Staff Positions

Staff positions are Notes and Comments Editors (NCEs) and Senior Associates. NCEs work closely with first year Law Review members on editing their student notes. Senior Associates have the same responsibilities as a first year Law Review member, but they are not required to write another paper.

Webmaster

The Law Review’s webmaster needs sufficient computer skills to be able to run the Law Review’s webpage. This position is normally held in conjunction with another position on the Law Review.

Descriptions of Positions

Editor-in-Chief (“EIC”)

The Editor-in-Chief has the ultimate fiscal, editorial, and administrative responsibility for the Law Review, including supervision and coordination of the activities of the editors and staff members so that the publication process flows smoothly and quickly. The Editor-in-Chief participates in the selection of material for the review and has the final editorial decision on all articles to be published by the Law Review. The EIC often interacts with the faculty and administration, fielding questions and requests, and providing status reports. The Editor-in-Chief also maintains contact with the faculty editors of the issues to resolve problems and provide status reports. Finally, the EIC acts as an EAE for certain articles.

The Editor-in-Chief should expect to devote a very substantial amount of time to the Law Review. The EIC will likely spend more time on Law Review work during the course of the year than on class work. The EIC also needs to spend a significant amount of time in the summer helping to run the Summer Candidacy Program. Further, the EIC will be responsible for publishing all three issues of Volume 86. If these are not done by the end of the academic year, the EIC will need to work during the following summer with the incoming staff to complete publication. The nature of the EIC’s responsibilities would also make it difficult to work outside of school or to be involved in another organization that requires a substantial time commitment.

A more detailed account of the Editor-In-Chief’s responsibilities follows:

1. Final editorial responsibility. The EIC is the final editor who reviews articles before publication. Thus, the EIC must have an excellent grasp of the principles of the Bluebook and the Chicago Manual of Style. The EIC will also serve as an EAE for some articles. The EIC is responsible for communicating with authors as necessary, and planning and organizing the symposia articles.

2. Staff management. The EIC needs to make sure that the staff is meeting deadlines, has the resources they need for cite checking, etc. The EIC is also responsible for reporting to the registrar what grade Law Review members should receive for their Law Review credit.

3. Management of the business of the Law Review. The EIC has the authority to enter into contracts that bind the Law Review. The EIC may need to interact with vendors, suppliers, and other third parties, most particularly our printer.

4. Head the Law Review “department” within Chicago-Kent. The EIC is responsible for setting, managing, and adhering to our departmental budget. The EIC must exercise discretion as to what expenditures the Law Review should make. The EIC may need to make hiring decisions as well.

5. Be an advocate for the Law Review. This means everything from helping to recruit new members to meeting with the Dean to resolve issues that are in the interest of the Law Review.

Skills that are important for the EIC to possess include attention to detail, organization, commitment to the Law Review and a desire to continuously improve it, and an ability to work with and manage people and to handle conflicts.

Benefits to the EIC position include a full tuition scholarship in your third year. You will also be eligible to register for 3 Law Review credits per semester. And, you get your very own desk in the Law Review office!

Managing Editor (“ME”)

The Managing Editor is the administrator of the Law Review. The Managing Editor acts as the library liaison and assigns work to staff members and tracks staff performance with respect to those assignments. It is the job of the ME to keep track of all cite-checking assignments and deadlines, to keep records of all sources ordered from the library, when those sources arrive, and when the sources must be returned. The ME must be in constant communication with cite-checkers regarding the status of assignments/when their next assignment will be coming.

The ME also coordinates the annual on-site symposia. This entails working closely with the faculty member running the symposium, helping all participants with travel plans, creating symposium information packets, making sure the Law Review’s webpage has all appropriate symposium information, and coordinating Law Review staff volunteering at the event itself. The ME also plans the annual banquet, the election process, and the summer staff orientation. And, the Managing Editor acts as an Executive Articles Editor for certain articles.

The Managing Editor needs to be willing to dedicate a significant portion of time to the Law Review. This position may require more time being spent on Law Review duties than on class work. The ME needs to be extremely well organized, must pay attention to detail, and must be able to work well with the entire staff. The ME establishes all due dates for cite checkers, and it is at the ME’s discretion if and when any extensions should be granted. Much of the ME’s time is spent on e-mail, answering cite-checkers’ questions, communicating with EAE’s regarding their sources, and making sure cite checkers and EAE’s are working well together.

The ME is eligible to receive 2 Law Review credits per semester, tuition-free, in consideration of his/her contribution to the Law Review.

Executive Notes and Comments Editor (“ENCE”)

The Executive Notes and Comments Editor manages the summer write-on candidacy program, which includes assisting the Executive Committee in selecting a write-on topic and writing the write-on question, scheduling the summer write-on program, establishing procedures for selecting qualifying write-on papers, and ensuring the confidentiality and integrity of the write-on program. The Executive Notes and Comments Editor also schedules the Legal Writing IV equivalency classes for staff members, manages the Notes and Comments Editors, and coordinates the selection process for deciding which student notes and comments merit publication.

The ENCE is eligible to receive 2 Law Review credits per semester, tuition-free, in consideration of his/her contribution to the Law Review.

Executive Articles Editor (“EAE”)

Executive Articles Editors edit the articles that are published in the Law Review. The process of editing symposium articles includes working with both authors and faculty editors, as well as overseeing the cite-checking, Bluebooking, and proofreading performed for each article. In addition, EAEs review and vote on all papers for the summer write-on candidacy program and for publication.

EAEs receive 1 Law Review credit per semester, tuition-free, in consideration of their contribution to the Law Review.

Notes and Comments Editor (“NCE”)

Notes and Comments Editors supervise individual staff members during the student writing process. Their supervisory functions include assisting staff members in selecting topics, critiquing drafts, and participating in the selection of the student articles for publication. In addition, NCE’s assist the Executive Notes and Comments Editor during the summer write-on candidacy program and may participate in selection and editing student notes and comments for publication in the Law Review. Notes and Comments Editors participate in cite-checking and Bluebooking assignments during the summer. NCEs are eligible to sign up for 1 Law Review credit, but that credit is not tuition-free.

Senior Associate

During the summer months and throughout the entire academic year, Senior Associates participate in cite-checking, Bluebooking, and proofreading articles. Senior Associates are eligible to sign up for 1 Law Review credit, but the credit is not tuition-free.

Webmaster

The Webmaster works with the Publication Assistant to maintain the Law Review webpage. The Webmaster should be familiar with the maintenance and operation of a Web Page and Internet-related issues. The Webmaster is responsible for running the Law Review’s webpage, placing new issues of the Law Review and other relevant information on the webpage, and helping to implement additions and improvements to the Page. The Webmaster’s goal should be to improve the Law Review webpage, making it user-friendly and helpful to all visitors. The current Webmaster is Executive Article Editor, Michael Borella. He is also the brain-child behind the new www.cklawreview.com.

Morgan Cloud, Innocence, Evidence, and the Courts, 85 Chi.-Kent L. Rev. 3 (2010)

Larry Laudan and Ronald J. Allen, Deadly Dilemmas II: Bail and Crime, 85 Chi.-Kent L. Rev. 23 (2010)

This is another in a series of papers examining the interaction between the implications of the deadly dilemma of governing that virtually all governmental action involves unavoidable conflict between equally laudatory goals and the conventional way of thinking about social errors. Typically the pursuit of any particular goal has as its consequence precisely the kind of harm that is desired to be avoided. For example, serious felons are sent to prison in part to protect innocent parties from their future predations, but those same felons often prey upon fellow prisoners, including murder. Moreover, felonies committed in prison only begin the catalogue of “wrongful” consequences to “innocent” individuals flowing from incarceration. If it is sufficient to end a social practice because it causes innocents to die, then we are obliged to eliminate prisons — and hospitals for that matter. The point cuts even deeper. Virtually every governmental decision affects who will live and die. Whether roads are built, where, and to what standard of safety do this. Decisions on welfare programs do, as does the allocation of medical research funds or the choice to fund research instead of primary education, or vice-versa, or whatever. To the extent such matters are considered in the literature at all, the explicit treatment of errors by both the legal system and legal scholars has been curious both analytically and normatively. The simplest example of this is the virtually exclusive focus of both on false positives (false findings of liability, civil or criminal) and false negatives (false findings of no liability). This neglects two fundamental issues: first that there are four possible findings at trial, the two mistakes and the two possible correct verdicts; second and even more importantly, that sensible social regulation must be concerned not just with outcomes at trial and the resultant effect on litigation behavior but also with the effect of trial decisions on primary behavior. In sum, we suggest that sensible social policy must involve an analytically sound approach to decisions involving such deadly dilemmas. As we have demonstrated in previous work, the failure to do so leads to both analytically and morally perverse results in some areas. We demonstrate that same failure here in the context of pre-trial release decisions. We also suggest a modification of current practice that might ameliorate costs without altogether eliminating bail.

Janet C. Hoeffel, The Roberts Court’s Failed Innocence Project, 85 Chi.-Kent L. Rev. 43 (2010)

In this article, Professor Hoeffel discusses the Roberts Court’s obvious struggle with its actual innocence jurisprudence. It is a struggle that was only theoretical in the days before DNA exonerations. While the Court has had two opportunities to clarify the role of wrongful convictions in the criminal justice system, it has declined to do so. In House v. Bell, the Court ratcheted up the standard of proof for freestanding constitutional claims of innocence to a level no petitioner could understand, much less meet. Then, in District Attorney’s Office for the Third Judicial District v. Osborne, the Court held that the one manner in which a litigant might in fact meet that standard – through conclusive DNA testing of the state’s evidence – was not constitutionally mandated. Through analysis of these two cases and two other cases that came before the Roberts Court, Professor Hoeffel concludes that the majority of the Court is so cowed by the power of DNA that it has exaggerated its potential impact on the criminal justice system. As a result, it has closed doors on the few men and women who can prove their innocence.

Arnold H. Loewy, Taking Reasonable Doubt Seriously, 85 Chi.-Kent L. Rev. 63 (2010)

In recent years, we have a discovered a spate of factual innocent people who have been convicted. In this article, Professor Loewy contends that the failure of juries to take reasonable doubt seriously contributes to this phenomenon. Professor Loewy via an illustrative fictitious case explains that juries might be reluctant to give the defendant the benefit of a reasonable doubt because of their concern about putting dangerous criminals back on the street. He then asks whether we really want juries to take reasonable doubt seriously. Concluding that we do, he examines how we can do that. Loewy concludes that the best way to that is with a jury instruction that sharply distinguishes proof beyond a reasonable doubt from clear and convincing evidence. Only if the jury really understands that dichotomy is it likely to understand that it cannot convict merely on clear and convincing evidence. The article suggests an instruction that would accomplish this purpose. The author concludes that while this instruction is not constitutionally mandated, it is constitutionally permissible and should be adopted.

Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chi.-Kent L. Rev. 77 (2010)

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this essay presents a new dimension to this issue – the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling – all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes. This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

Kent Roach, The Role of Innocence Commissions: Error Discovery, Systematic Reform or Both?, 85 Chi.-Kent L. Rev. 89 (2010)

This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Criminal Cases Review Commission and the North Carolina Innocence Inquiry Commission are examined as examples of the former type of commission while Canadian public inquiries and commissions in Illinois, California and Virginia are examined as examples of the latter type of commission. Innocence commissions have had difficulties combining error correction and systemic reform because there are differences and tensions between the two functions. Error correction commissions play a quasi-judicial role while systemic reform commissions often engage in political compromise and advocacy. Although there is a need for both error correction and systemic reform with regard to wrongful convictions, more attention needs to be paid to the precise objectives and limitations of innocence commissions as new and fragile criminal justice institutions.

Lawrence Rosenthal, Second Thoughts on Damages for Wrongful Convictions, 85 Chi.-Kent L. Rev. 127 (2010)

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. In this article, Professor Rosenthal argues that the case for providing such compensation is deeply problematic, whether advanced in terms of no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back such liability-producing conduct to optimal levels; this rationale has little application to the criminal justice system. Instead, a regime of strict liability would operate as a kind of perverse wealth transfer – from those most in need of government assistance to the exonerated – without reducing the risk of error in the criminal process. Given the nature of this wealth transfer, the case for compensation as a means of providing social insurance against wrongful convictions is equally flawed. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — a skepticism that Professor Rosenthal argues is warranted. Even if the law were to remove all doctrinal objections to fault-based liability for wrongful prosecutions and convictions, such a regime could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction. Instead, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.

Victor Streib, Intentional Wrongful Conviction of Children, 85 Chi.-Kent L. Rev. 163 (2010)

Intentional wrongful convictions in cases involving child offenders may occur when judges have insufficient evidence proving any crime by the child but feel a strong need for the courts to intervene in the child’s life and behavior. They believe that the negative factors attached to such a status are worth suffering if the child gains entry into a desired state program. This is wrongfully convicting the child “for the child’s own good.” Juvenile court judges too often receive knowledge of the child’s background and previous record prior to any trial or hearing in order to devise the best result for the child. A jury, however, would never be given that information prior to the trial. The solution here may be to provide for jury trials in juvenile court. Another cause of these cases is the defense attorney who does not challenge the state’s prosecution zealously but who cooperates with the state in shunting the child off to the desired program. We also may not be taking seriously the requirement that children’s offenses be proven beyond a reasonable doubt, and we should seek means to better insure that it is maintained. Many jurisdictions limit access to the most desirable treatment programs to those children found guilty of an offense in juvenile or criminal court. Simply being found to be a status offender or a child in need of services is not sufficient for admission. This might tempt a judge to wrongly convict a child intentionally as a justifiable means to that desirable end.

Russell L. Weaver, Reliability, Justice and Confessions: The Essential Paradox, 85 Chi.-Kent L. Rev. 179 (2010)

This paper deals with the issue of “reliability” in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found “innocent” of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions process that lead to invalid confessions.

Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191 (2010)

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of the Fourth Amendment and, consequently, fewer cases worthy of Supreme Court review. If these premises hold true, the Fourth Amendment, while remaining the most commonly implicated aspect of the Constitution, may lose its status as the most frequently litigated part. What will remain is a residual, complex jurisprudence with little relevance.

Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209 (2010)

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority’s apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part III offers a prediction of a somewhat different sort. If the Court were to abolish the exclusionary rule, the exclusionary rule would return, in some form, in a decade or so. Prediction is hazardous. I hazard, however, the prediction that the Roberts Court will not abolish the Fourth Amendment exclusionary rule.

Ronald J. Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt, 85 Chi.-Kent L. Rev. 241 (2010)

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens’ rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the evidence, and whether the admission of the evidence would seriously damage the integrity of the proceedings. In order to protect citizen’s rights, this paper also proposes that Fourth Amendment violations be treated like direct criminal contempt of court. Thus, if a judge determines that there has been a serious Fourth Amendment violation, the offending officer could be summarily punished. Inasmuch as this punishment can be comparatively severe and is directly aimed at the offending officer, it should have a strong deterrent effect. Moreover, since a judge would be empowered to impose a penalty with minimal process beyond that which would have already taken place, it would be a more reliable deterrent than even the existing exclusionary rule.

Scott E. Sundby, Mapp v. Ohio’s Unsung Hero: The Suppression Hearing as Morality Play, 85 Chi.-Kent L. Rev. 255 (2010)

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court’s rulings have made clear, any reevaluation of the exclusionary rule’s future will be conducted under the now familiar rubric of whether the rule’s “benefit” of deterring police misbehavior outweighs the “cost” of lost evidence and convictions. This essay argues that if any such reevaluation does occur, the Court must take into account something overlooked in evaluations of the past: the benefits of a suppression hearing itself. The hearing acts much like a morality play for those involved in the nitty gritty of law enforcement – police, judges, prosecutors, and defense attorneys – by instructing everyone involved both as to the Fourth Amendment’s rules and why those rules are of a constitutional magnitude mandating honor and respect. And because the exclusionary rule reaches a wide variety of police behavior – unlike civil suits and disciplinary proceedings which reach only the most egregious instances of misbehavior – the suppression hearing becomes an invaluable public forum for providing transparency and promoting police compliance with the Fourth Amendment. In short, the suppression hearing is the exclusionary rule’s unsung hero, and in the end offers the Court a means to find the truest measure of the exclusionary rule’s costs and benefits.

Andrew E. Taslitz, Fourth Amendment Federalism and the Silencing of the American Poor, 85 Chi.-Kent L. Rev. 277 (2010)

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore’s person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution’s Fourth Amendment. Central to the Court’s reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment’s meaning vary from place to place. Professor Taslitz argues in this essay, however, that the Amendment’s meaning does, and should, sometimes so vary. Indeed, he explains, Moore itself illustrates how a place-blind jurisprudence can disempower poor racial minorities, whose voice, articulating a more therapeutic approach to crime, is heard more clearly by local legislatures than by the more distant and punitive state ones. Permitting the state to declare the injustice of arrest for minor offenses while providing no remedy when that injustice nevertheless occurs frees police to arrest the politically weak for such offenses while merely citing the politically powerful. A more geography-centric view of the Fourth Amendment would minimize these and other risks of unequal and unreasonable state invasions of the privacy, property, and locomotive rights that the Amendment protects.

Craig M. Bradley, Melendez-Diaz and the Right to Confrontation, 85 Chi.-Kent L. Rev. 315 (2010)

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment’s command that “In all criminal prosecutions the accused shall enjoy the right…to be confronted with the witnesses against him….” On it’s face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but limited the right of cross-examination to “testimonial” but not “nontestimonial” hearsay. That is, testimony as to “statements made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial,” including police interrogations, are “testimonial” and cannot be used unless the declarant is available for cross-examination. On the other hand, “nontestimonial” statements, such as 911 calls or other “statements about events as they were actually happening” may be presented at trail with no need for cross-examination. In Melendez Diaz v. Massachusetts, the question was whether the testimony of experts who had performed scientific tests was “testimonial” or “nontestimonial.” Since such tests are performed for use at a later trial, the Court, under the above Crawford formulation, concluded that they were “testimonial” and consequently couldn’t be used unless the expert who performed the tests was available to testify at trial. This article, while agreeing with the outcome in Melendez-Diaz, argues that the testimonial/non-testimonial distinction makes no sense. As is evident from the Sixth Amendment itself, it applies to all testimony in court. However, as the Supreme Court has recognized in other cases, notably Scott v. Illinois, limiting the Sixth Amendment right to trial by jury to cases where imprisonment is an option, sometimes practical concerns must limit recognition of an Amendment’s reach. Accordingly, this article proposes that the right to confront witnesses be limited to cases in which the defendant is able to demonstrate a need to cross-examine witnesses, rather than the rule of Crawford that limits the right based on the nature of the evidence itself. This would be both truer to the language of the Amendment and, more importantly, more clearly advance the overriding goal of fairer trials.

Luke M. Milligan, Stacking in Criminal procedure Adjudication, 85 Chi.-Kent L. Rev. 331 (2010)

The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an “insulated base rule” in a way that disrupts the Justice’s larger policy agenda. An “insulated base rule” is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses. A Justice’s consideration of this third constraint (i.e., how a vote will affect a particular “insulated base rule”) is a process I call “stacking.” Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative “stacking” through close study of the Supreme Court’s recent opinions in Virginia v. Moore.

Rue Toland, Not Tax for “Phantom Income”: How Congress Failed to encourage Responsible Housing
Consumption with Its recent Tax Legislation, 85 Chi.-Kent L. Rev. 345 (2010)

In the midst of the recent housing crisis, Congress passed two key pieces of federal tax legislation in an attempt to stem the tide of foreclosures and prevent further economic collapse. These two bills, the Mortgage Forgiveness Debt Relief Act in 2007 and the Housing and Economic Recovery Act in 2008, both sought competing goals: lessening the harm to existing homeowners, and encouraging purchases by new homebuyers. However, neither bill adequately addressed one of the root causes of the housing crisis, namely homeowners obtaining mortgages that, for whatever reason, they could not afford. Indeed, the tax incentives these bills created would likely perpetuate that problem. Instead of passing legislation that would provide tax incentives favoring responsible home purchasing, Congress enacted new laws that encouraged the very sort of risky behavior that led to the housing crisis in the first place. An analysis of the Congressional debates prior to the passages of the Mortgage Forgiveness Debt Relief Act and the Housing and Economic Recovery Act demonstrates that this failure stemmed in part from a misunderstanding by the legislators regarding how the new provisions of the Tax Code would work. This note explores the tension between the need for a short-term fix and the necessity of a responsible long-term economic behavior evident in the Mortgage Forgiveness Debt Relief Act and the Housing and Economic Recovery Act.

Irina Slavina, Don’t Bet on it: Casinos’ Contractual Duty to Stop Compulsive Gamblers from Gambling, 85 Chi.-Kent L. Rev. 369 (2010)

To address the problem of compulsive gambling, most states with commercial casinos have enacted statewide self-exclusion programs, a mechanism by which patrons petition to be physically removed from a casino if they are discovered on the premises. The casinos in the remaining states voluntarily instituted facility-based programs to assist problem gamblers in fighting their addiction. But besides having any intended effect, these programs provided gamblers with a new ground for lawsuits based on breach of contract. This note argues that neither states nor individual casinos should be liable to self-excluded patrons for breach of contract, even if they enter a casino and lose money while gambling. First, no contract exists between the states and self-excluding gamblers because in administering the self-exclusion programs the states simply fulfill their preexisting statutory duty and, in any event, the states are shielded from such lawsuits by sovereign immunity. Likewise, casino-administered programs do not create contractual relationship due to lack of consideration. Casinos are not bargaining for their patrons to refrain from gambling. Rather, casinos are simply providing their patrons with an accommodation or social service to promote responsible gaming. But even if the contract was established, every self-exclusion form contains an exculpatory clause that prevents any liability on the part of the states and casinos. These clauses should be enforceable as dictated by public policy. To hold otherwise would shift the main responsibility for compliance from the patron to the casino which would be counter-productive to the program’s goals.

Paul Forster, Separating Church and State: Transfers of Government Land as Cures in Establishment Clause Violations, 85 Chi.-Kent L. Rev. 401 (2010)

The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave dessert . The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court’s Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the type of remedial transfer at issue in Buono, and it suggests how judges can police such sales in order to ensure that they pass constitutional muster.

Gregory W. Jones, Free Speech & Tainted Justice: Restoring the Public’s Confidence in the Judiciary in the Wake of Republican Party of Minnesota v. White, 85 Chi.-Kent L. Rev. 441 (2010)

The United States Supreme Court’s 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to preserve judicial impartiality in an era of modern campaigning. Preserving the remaining canons of judicial conduct is vital to avoid transforming judicial elections into the highly politicized contests typical of the executive and legislative branches of government. Moreover, modifications to current judicial disqualification and recusal standards are needed to place the appropriate emphasis on the importance of maintaining judicial impartiality. Finally, significant changes must be made to the way the courts handle recusal motions to ensure that a judge is never allowed to unilaterally evaluate his own impartiality. As judicial campaign spending continues is meteoric rise, the need to preserve the public’s confidence in the judiciary has never been greater.

Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law: An Introduction to a Festerschrift in Honor of Jefferey Sherman, 84 Chi.-Kent L. Rev. 345 (2009).

Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 Chi.-Kent L. Rev. 379 (2009).

The high profile contemporary controversy about whether to allow same-sex couples to marry has obscured an earlier debate about same-sex marriage. This previous debate took place inside the LGBT movement, where equality advocates faced off about whether marriage equality ought, as a normative matter, to be pursued. With few exceptions, this internal critique of LGBT marriage has receded. In this article, Professor Schacter revisits the earlier debate, considers why pro-equality marriage skepticism faded, reflects on how the public debate about same-sex marriage today might have unfolded differently had the marriage skeptics within the LGBT community held more sway, and suggests ways in which the largely-forgotten internal debate has relevance in the contemporary context.

Edward Stein, The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships, 84 Chi.-Kent L. Rev. 403 (2009).

For many years, a common argument made by opponents of same-sex marriage was that marriage crucially involves procreation and, because couples consisting of two people of the same sex simply cannot procreate, therefore, same-sex couples should not be able to marry. While this argument is now widely seen as weak, in its place, a new argument that also involves procreation has emerged that focuses on the claim that different-sex—but not same-sex—couples, can accidentally procreate. Because of this risk of accidental procreation and the associated risk of harm to children who result from accidental procreation, proponents of this argument conclude that it is permissible for the state to provide different-sex couples with the opportunity to marry without providing the same opportunity to same-sex couples. Several courts have embraced this argument against same-sex marriage. This paper shows that the accidental procreation argument against same-sex marriage has the same infirmities as prior arguments against same-sex marriage that concern procreation. Both arguments have problems with under- and over-inclusiveness and both embrace an overly narrow account of the role of marriage. The accidental procreation argument should, like previous arguments from procreation, eventually wither under both empirical and logical analysis, and subsequently, be rejected by states as plausible justifications for prohibiting same-sex marriages and rejected by courts as not satisfying rational review.

John G. Culhane, Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights, 84 Chi.-Kent L. Rev. 437 (2009).

This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970’s through late 2008. Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970’s, the socially enforced invisibility of gay lives and relationships translated into an inability to regard “gay marriage” as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view. Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts were been able to focus on economic understandings and the law of contract.

Patricia A. Cain, DOMA and the Internal Revenue Code, 84 Chi.-Kent L. Rev. 481 (2009).

The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. The article then considers other justifications for applying DOMA to federal tax law and concludes that none of them meet minimal levels of rationality to support retaining the DOMA ban in the year 2009. Because the justifications fail, DOMA, as applied to federal tax law, is unconstitutional.

Arthur S. Leonard, Exorcizing the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009).

After the Supreme Court rejected a constitutional challenge to criminal sodomy laws in Bowers v. Hardwick (1986), lower federal courts almost invariably took the position that gay litigants could not prevail in challenging governmental discrimination on the basis of sexual orientation, reasoning that if conduct that “defined the class” was not constitutionally protected, government discrimination against the class should not be considered presumptively unconstitutional. Such logic should have been discarded after the Supreme Court’s decision in Romer v. Evans (1996), and certainly after Lawrence v. Texas (2003), in which the Court expressly overruled Bowers v. Hardwick. But lower federal courts have persisted in rejecting gay equal protection claims, frequently relying on pre-Romer circuit court of appeals decisions that cited Bowers as controlling precedent. These discredited but still influential precedents are the “ghosts” of Bowers v. Hardwick. Now that Bowers has been overruled, it is past time for the lower federal courts “exorcize” these ghosts by thinking anew the doctrinal issues raised by gay equal protection claims, which should lead to heightened scrutiny of policies and practices that discriminate against gay people.

M.V. Lee Badgett, Brad Sears, Holning Lau, and Deborah Ho, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 Chi.-Kent L. Rev. 559 (2009).

This article summarizes social science data published during the past decade documenting discrimination against lesbian, gay, bisexual, and transgender (LGBT) people in employment. Over the last ten years, many researchers have conducted studies to find out whether LGBT people face sexual orientation discrimination in the workplace. These studies include surveys of LGBT individuals’ workplace experiences, wage comparisons between lesbian, gay, and bisexual (LGB) and heterosexual persons, analyses of discrimination complaints filed with administrative agencies, and testing studies and controlled experiments.

Andrew Koppelman, Madisonian Pornography or, The Importance of Jefferey Sherman, 84 Chi.-Kent L. Rev. 597 (2009).

James Madison’s classic attack on the Sedition Act shows how free speech protection is vital to the functioning of democracy. His argument reaches toward, but does not fully defend, a right to pornography. Jeffrey Sherman’s work, which shows that gay pornography played a significant role in the genesis of the gay rights movement, completes the Madisonian argument. The more general lesson is that speech consisting of claims about what goods are worth pursuing—such as pornography, which implicitly contains claims about what sexual goods are worth pursuing—should always be understood to be part of protected public discourses.

Cynthia Estlund, Corporate Self-Regulation and the Future of Workplace Governance, 84 Chi.-Kent L. Rev. 617 (2009).

American labor law has largely failed to deliver a viable mechanism for employee representation in workplace governance, while the ever-expanding body of employment law does not even attempt to do so. The resulting “democratic deficit” in the workplace is a problem in part because, without employee representation, the rights and labor standards mandated by employment law are widely under-enforced. But that very problem could point toward a solution. For while employment law does not aim to give employees a role in workplace governance, it has in fact fostered the growth of new governance mechanisms within firms in the form of internal compliance programs that capitalize on and develop firms’ own regulatory capabilities. The law has encouraged this development in part by conferring regulatory advantages on firms that maintain “effective” self-regulatory structures. Missing, however, is the recognition that, for self-regulation to be effective in the realm of employment law, it must include an organized institutional voice for employees. In other words, there should be no self-regulation, and no self-regulatory privileges, without employee representation. These same mechanisms of “regulated self-regulation” and employee representation, coupled with an appropriately broad definition of employer liability, could also help to address the problem of widespread noncompliance with labor standards among the small contractors that supply labor to more visible and capable organizations. In short, existing developments within and among firms could and should be steered toward creating new mechanisms for collective employee participation in workplace governance.

Robert J. Grindle, Frenzy-Free Funerals: The Least America Owes Its Fallen heroes, 84 Chi.-Kent L. Rev. 637 (2009).

Frenzy-Free Funerals: The Least America Owes its Fallen Heroes analyzes the constitutionality of the Respect for America’s Fallen Heroes Act (RAFHA). After detailing relevant First Amendment cases, the note examines court treatment of funerals and death-related issues. The history and purpose of funerals is examined from a psychological and sociological perspective, including a funeral’s significance to individuals and society at-large. Finally, the note concludes that the RAFHA is constitutional under the First Amendment, given the relevant test, court cases, and societal norms.

Adam P. Joffe, The Medical Monitoring Remedy: Ongoing Controversy and a Proposed Solution, 84 Chi.-Kent L. Rev. 663 (2009).

Prior to the mid-1980s, tort law adhered to the traditional notion that the threat of future harm was not an adequate ground to pursue a claim in tort. However, in Friends for All Children v. Lockheed Aircraft Corp., the United States Court of Appeals for the District of Columbia awarded a group of plaintiffs the cost of future medical examinations aimed at detecting whether the plaintiffs suffered from a particular neurological impairment. This new remedy became known as “medical monitoring.” Since Friends for All Children v. Lockheed Aircraft Corp., the medical monitoring remedy has attracted controversy and has resulted in widely diverging views among various jurisdictions. This note will discuss the history of the medical monitoring remedy, including common criticisms of the remedy. The note will propose a strict standard that must be met before medical monitoring is awarded in the future and will propose a method for disbursing medical monitoring awards when they are deemed appropriate.

Jeremy D. Kerman, Righting the Notice Pleading Ship: How Erickson v. Pardus Solidifies the Modern Supreme Court Trend of Notice-Giving in Light of Bell Atlantic Corporation v. Twombly, 84 Chi.-Kent L. Rev. 691 (2009).

This Note traces the history of pleading in the United States from the adoption of the Federal Rules in 1938 through the Twombly and Erickson decisions in the summer of 2007. Specifically, this Note examines the Twombly decision and its effects on the trend the Supreme Court has established over the last half-century concerning the notice pleading standard of Rule 8(a)(2). This Note also suggests that the Twombly Court effectively created a heightened pleading standard for antitrust cases, even though it specifically denied doing so. I then analyze the Erickson decision and how the timing and direct nature of Erickson suggests that the Court’s decision in Twombly does not extend beyond Twombly itself. Ultimately this Note argues that while Twombly departed from the modern trend of simple notice pleading in response to concerns with the ever-increasing costs of discovery in federal litigation, Erickson demonstrates the Court’s desire to isolate Twombly as an outlier and reinforce the modern trend in which Rule 8(a)(2) does not require a heightened pleading standard.

We’ll start 2010 with an overview of how our publications are coming along.

Volume 84, Number 1 is printed and has been delivered to our office (right now it is sitting in boxes on the floor but we’ll remedy that soon). For Volume 84, Number 2, we’ve received the first set of proofs from the publishers and are busily working on the latter stages of revisions. The proofs for Volume 85, Number 1 are also here, though we have not yet started revisions.

Our goal is to publish all of Volumes 84 and 85 by the end of Spring semester. Wish us luck (better yet, buy us a drink when you can).

Papers based on these presentations will be published in an upcoming issue of the Chicago-Kent Law Review.

Note, drafts will only be available to individuals who attended the symposium and signed in for CLE credit. All others can access the articles on this website and in print after they are formally published.