Digital Commons Network^™

Vol. 6 No. 1, Fall 2014; 'Fixing' The First Sale Doctrine: Adapting Copyright Law To The New Media Distribution Paradigm, Samuel Perkins

Northern Illinois Law Review Supplement

This Article discusses Section 109 of the Copyright Act, the first sale doctrine, in the context of digital media and internet-based storage. Traditionally, the first sale doctrine served as an important limitation on the exclusive rights of copyright owners, allowing copies of lawfully obtained works to be resold without interference from the copyright owner. As a result of this limitation, physical media remains freely alienable after the first sale, providing secondary markets for used copies and more consumer choice. However, due to the nature of digital media and the recent market shift among media distributors, first sale doctrine has become …

Vol. 6 No. 1, Fall 2014; Protecting The Sanctity Of Family: An Argument For The Equitable Parent Doctrine, Kelli Schmidt

Northern Illinois Law Review Supplement

This Comment examines the rights of men who held themselves out as a child's father or who did not know they were the biological father with a focus on the equitable parent doctrine. Because the equitable parent doctrine has not been adopted in Illinois, the author proposes new legislation. The proposed legislation establishes factors to assist a court in determining when a man should be granted rights to a child with respect to two different scenarios: first, if he held himself out as the child's father, but ultimately found out he was not the biological father, or second, if the …

Vol. 6 No. 1, Fall 2014; Table Of Contents & Masthead, Northern Illinois University Law Review Online Supplement, Northern Illinois University Law Review Online Supplement

Northern Illinois Law Review Supplement

No abstract provided.

The Creation Of Hipaa Culture: Prioritizing Privacy Paranoia Over Patient Care, Jessica Jardine Wilkes

BYU Law Review

No abstract provided.

Racial Disparities In Punishment And Alienation: Rebelling For Justice, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

Racial Disparities in Punishment and Alienation: Rebelling for Justice

Abstract

African Americans have been over-represented in the criminal punishment system in the United States since after Reconstruction. This article is the first scholarly analysis of the major role the insidious process of racial subordination plays in creating black alienation and black criminality. Sociologists, led by Emile Durkheim and Robert K. Merton, articulate the relationship between alienation and crime, and yet fail to inject the role that racial subordination plays in this relationship.

This article is also a departure from the usual scholarly and analytical approaches that have either been simply …

Consignment Catastrophes: Lessons From New York's Art Gallery Fraud, Megan Haslach

Washington Journal of Law, Technology & Arts

The 2007 collapse of Salander O’Reilly Gallery in New York City caught the attention of New York’s state lawmakers after artists and their heirs lost nearly $120 million in gallery owner Lawrence Salander’s schemes. This scandal ultimately led lawmakers to enact major changes in the state’s art consignment statute. The changes bolstered existing protections while adding additional safeguards for artists who choose to consign their works through galleries rather than selling them wholesale. This Article will examine the relationship between consignors and consignees, highlighting major vulnerabilities that current consignment statutes create for artist consignors. In Section I, this Article will …

Framing The Issue: Avoiding A Substantial Similarity Finding In Reproduced Visual Art, Rachael Wallace

Washington Journal of Law, Technology & Arts

Copyright issues are litigated in the United States every day. Yet attorneys representing visual artists settle suits more often when those suits involve the potential of a copyright infringement, partly because of the relatively few decisions on the matter. In Harney v. Sony Pictures, Inc., the First Circuit found that a copyrighted photograph could be copied to look nearly the same as the original because the copied elements were each unprotectable under the copyright. The copyright protected only those elements of the photo that were the result of the photographer’s choices in depicting the subject. The court held that …

Getting Beyond Abstract Confusion: How The United Kingdom's Jurisprudence Can Aid In Developing An Analytic Framework For Patent-Eligibility In Light Of Alice V. Cls Bank, Brendon Beheshti

Washington Journal of Law, Technology & Arts

This Article advocates consideration of the United Kingdom’s jurisprudence as persuasive authority for implementation of a new framework for analysis of subject matter eligibility of computer-implemented inventions in light of the United States Supreme Court’s ruling in Alice Corp. v. CLS Bank International. The U.K.’s patent jurisprudence provides a more developed and clear analytic framework that conforms to the policy objectives of Alice, while also avoiding the conceptual problem of determining what is “abstract.” The result is a more useful and concrete analytic framework that also reduces conflicts of laws, and thus can help spur innovation across the …

Hologram Images And The Entertainment Industry: New Legal Territory?, Stephen Anson

Washington Journal of Law, Technology & Arts

Modern technology allows for the holographic reproduction of a dead artist’s likeness, with the ability to perform past classic works or new original artistic works. The Coachella Valley Music and Arts Festival performance by the “holographic” Tupac Shakur in April 2012 dazzled an excited crowd and made the idea of bringing back deceased musical celebrities or other public personalities a reality. The use of such holographic performances is in its infancy, but the potential for possible intellectual property infringement is real and concerns the areas of copyright, trademark, and–most importantly–the right of publicity, which protects a celebrity’s name, likeness, voice …

Two Figures In The Picture: How An Old Legal Practice Might Solve The Puzzle Of Lost Punitive Damages In Legal Malpractice, John M. Bickers

Northern Illinois University Law Review

When lawyers err, clients must pay the price. If a lawyer's action, or inaction, prevents a client from succeeding in a lawsuit, the lawyer must pay the amount necessary to make the client whole. But what does it mean to make the client whole? A puzzle appears when a finder of fact in a legal malpractice case determines that punitive damages in the original lawsuit were appropriate. Punitive damages are not meant to restore the client to her original position. By definition, they are meant to punish the original defendant for the egregiousness of his conduct. The plaintiff receives them …

Shuttered: An Examination Of How The 2013 Chicago Public School Closings Are Denying Special Education Students The Right To An Appropriate Public Education, Michael Toren

Northern Illinois University Law Review

Recently, the Chicago Public School system faced financial crisis as it struggled to balance severe budget cuts against overwhelming pension obligations. CPS responded to the crisis by immediately closing forty-nine elementary schools and terminating the employment of thousands of teachers and support staff. The displaced students, including many with special needs, were hastily transferred to surrounding schools without meaningful evaluation of the impact of the closings or the resources the receiving schools could provide. After a brief history of the disability rights movement, special education laws, and the crisis that led to the CPS closings, this Comment argues that the …

Privately Funded Family Medical Leave?, Bernie D. Jones

Northern Illinois University Law Review

Upon the twentieth anniversary of the passage of the Family Medical Leave Act of 1993, activists have been pressed to correct its failure to grant American workers federally funded paid leave similar to those found in other nations that offer expansive social programming. Recent developments indicate, though, that supporters of paid leave might be more successful at the state level, not the federal one. Nonetheless, federally funded paid leave is presented as a pressing civil rights issue. In this article, I suggest an alternative, a property theory of paid family leave, founded upon a newer formulation of pension benefits: private …

The U.C.C. And Perfection Issues Relating To Farm Products, Robert D'Agostino, Bruce Gordon Luna Ii

Northern Illinois University Law Review

The Uniform Commercial Code (the U.C.C.), first proposed in 1952, is designed to harmonize the various state laws dealing with commercial transactions. To date, the U.C.C. has been adopted in all fifty states. Article 9 of the U.C.C. governs the creation of security interests in personal property that is pledged in exchange for debt. Primarily, Article 9 covers the creation of an enforceable security interest, referred to as attachment, the legal process of notification of a security interest to other creditors, known as perfection, the priority among secured creditors over claims to collateral, and the secured creditor's remedies for failure …

The Fourteenth Amendment: A Structural Waiver Of State Sovereign Immunity From Constitutional Tort Suits, Travis Gunn

Northern Illinois University Law Review

The Supreme Court's state sovereign immunity jurisprudence has undergone a fundamental change. Although the Immunity Theory of the Eleventh Amendment remains the approved methodology for assessing a State's sovereign immunity from suit, the modern Court has transformed state sovereign immunity into a constitutionally-derived aspect of the States' sovereignty, detached from the Eleventh Amendment's text. This Article explores what has been overlooked by other commentators: in detaching state sovereign immunity from the Eleventh Amendment's text, the modern Court used new analytical tools to justify the scope of state sovereign immunity. The modern Immunity Theory now emphasizes constitutional structure and constitutional history …

Dna Real Estate: The Myriad Genetics Case And The Implications Of Granting Patent Eligibility To Complimentary Dna, Sarah Elizabeth Hagan

Northern Illinois University Law Review

In June 2013, in Ass'n for Molecular Pathology et. al., v. Myriad Genetics, Inc., the Supreme Court examined the patent eligibility of isolated (human) DNA and its components. This was in response to advances in breast cancer prescreening surrounding mutations associated with the BRCA1 and BRCA2 genes. In accordance with 35 U.S.C. §101, the Court evaluated whether naturally occurring segments of DNA and synthetically created segments of v DNA were patent eligible. The Court found that while isolated natural DNA segments were patent ineligible, synthetically created DNA segments were not precluded. This Note examines the potential economic and ethical implications …

The Clash Between Science And The Law: Can Science Save Nineteen-Year-Old Dzhokhar Tsarnaev's Life?, Andrea Maciver

Northern Illinois University Law Review

The Supreme Court of the United States has found that youth under the age of 18 are fundamentally different than adults in ways that impact how they should be punished for their crimes. In Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Supreme Court ruled that it is cruel and unusual punishment to sentence youth under the age of 18 to death, to life without the possibility of parole for nonhomicide crimes, and to automatic life without the possibility of parole for homicide crimes (respectively). However, the underlying scientific studies that the Supreme Court relied on in …

Vol. 35, No. 1, Fall 2014: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

The Due Process Failings Of Student Disciplinary Board Hearings, Marc D. Falkoff

College of Law Faculty Publications

If you want to understand why the “technicalities” of a criminal trial are important — things like hearsay rules, an elevated burden of proof and the right to counsel — try sitting in on a university disciplinary hearing, where students face penalties as severe as expulsion but where such protections don’t apply.

Vol. 34, No. 3, Summer 2014: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

Fixed Perspectives: The Evolving Contours Of The Fixation Requirement In Copyright Law, Evan Brown

Washington Journal of Law, Technology & Arts

To qualify for copyright protection under the current Copyright Act, a work must, inter alia, be fixed in a tangible medium of expression. This requirement is easily met when a work is embodied in a historical medium of mass expression like a printed book, photograph, or audio recording. However, when an author departs from such established media of fixation, the requirement can create a more significant barrier to copyrightability. Three decades ago, digital media provided one such challenge. Today, authors and lawyers alike are pushing the conceptual boundaries of communicative media, and this has led to some controversial recent …

The Evolving Landscape Of Tcpa Consent Standards And Ways To Minimize Risk, Misa K. Bretschneider

Washington Journal of Law, Technology & Arts

Given the exponential growth in mobile phone usage, more businesses are adopting mobile communication strategies to engage with existing and potential customers. With 97% of all mobile marketing text messages being opened by their intended recipients, mobile text message marketing is both effective and lucrative. However, businesses must ensure that such messages comply with the Telephone Consumer Protection Act (TCPA), which generally prohibits sending unsolicited commercial text messages. Indeed, TCPA litigation has become the recent darling of class action lawyers due to uncapped statutory damages and is sure to increase with the heightened consent regulations promulgated by the Federal Communications …

Discovering The Undiscoverable: Patent Eligibility Of Dna And The Future Of Biotechnical Patent Claims Post-Myriad, Alex Boguniewicz

Washington Journal of Law, Technology & Arts

In June 2013 the Supreme Court held that naturally occurring human DNA cannot be patented, but synthetically created DNA is patent-eligible. Though a major victory for patients’ rights, the holding of Association for Molecular Pathology v. Myriad Genetics appears to be the latest in a series of restrictions on patents and the human body, much to the annoyance of biotechnology companies. However, this case should not be viewed as the final word in patenting “natural phenomena.” Patent claims of genetic material are still viable when the claim details a new and useful improvement on the naturally occurring product or an …

Spying On Americans: At What Point Does The Nsa's Collection And Searching Of Metadata Violate The Fourth Amendment?, Elizabeth Atkins

Washington Journal of Law, Technology & Arts

Edward Snowden became a household name on June 5, 2013, when he leaked highly classified documents revealing that the American Government was spying on its citizens. The information exposed that the National Security Agency (NSA) collected millions of American’s metadata through forced cooperation with telephone-service providers. Metadata contains sensitive and private information about a person’s life. When collected and searched, metadata can reveal a portrait of a person’s intimate activities amounting to a violation of one’s reasonable expectation of privacy. This Article suggests changing the current standard allowing the NSA to collect and search metadata under Section 215 of the …

Introduction To The Northern Illinois College Of Law 2014 Symposium Shelby County V. Holder: A New Perspective On Voting Rights, Marissa Liebling

Northern Illinois University Law Review

The introduction of state level voting laws in recent years is arguably unprecedented in both quantity and content, at least since the turn of the last century. This Article provides a background on legislative trends in order to give context to the thoughtful articles in this issue. First, the Article sets forth the types of recent laws that may serve as a barrier to voting, including felon disenfranchisement, proof of citizenship requirements, limits on voter registration drives and other registration practices, and voter identification laws. It next describes the countervailing trend towards increased legislation that expands voting opportunities and modernizes …

A Doctrine Of Sameness, Not Federalism: How The Supreme Court's Application Of The "Equal Sovereignty" Principle In Shelby County V. Holder Undermines Core Constitutional Values, Samuel Spital

Northern Illinois University Law Review

In Shelby County v. Holder, the Supreme Court eviscerated section 5 of the Voting Rights Act, a powerful remedy that applied to certain states and localities, which were identified by Section 4(b) of the Act. The Court held that section 4(b) violated “the principle that all States enjoy equal sovereignty.” I submit that Shelby County conflates sameness with equality, and that it constitutes a radical departure from precedent in three areas: (a) separation of powers; (b) federalism; and (c) the rules of adjudication for facial challenges. The decision is a major setback to civil rights. Ironically, it also provides an …

To Make Freedom Happen: Shelby County V. Holder, The Supreme Court, And The Creation Myth Of American Voting Rights, Aderson Bellegarde Francois

Northern Illinois University Law Review

There has never been a moment in American history when federal intervention, supervision, or enforcement was not necessary to guarantee full and meaningful voting rights for African Americans. Yet, since ratification of the Fifteenth Amendment, providing that states shall not deny the right to vote on the basis of race, the United States Supreme Court, when deciding questions of the legitimacy of federal enforcement of voting rights, has always reached for a narrative of federalism that cast federal intervention as a historical aberration at best and a constitutional perversion at worst. Since passage of the Voting Rights Act of 1965 …

Towards A Post-Shelby County Section 5 Where A Constitutional Coverage Formula Does Not Reauthorize The Effects Test, Joshua P. Thompson

Northern Illinois University Law Review

In Shelby County v. Holder, the Supreme Court struck down the decades-old coverage formula that triggered section 5 of the Voting Rights Act. Before the ink was dry on that opinion, efforts were underway to breathe new life into section 5. Calls for a legislative solution were immediate, and soon after that legislation creating a new coverage formula was proposed. Additionally, the Department of Justice brought a lawsuit that, if successful, will require the State of Texas to once again submit to preclearance. Thus, the issue that the Supreme Court avoided in Shelby County “ the constitutionality of section 5 …

“Whoa”-Ing Equine Clones’ Registration: Establishing Procompetitive Benefits To Counter The Anticompetitive Argument Against American Quarter Horse Association’S Ban On Clones, Alyssa Freeman

Northern Illinois University Law Review

This Note examines Abraham and Veneklasen Joint Venture v. American Quarter Horse Association, in which a United States district court ruled that the American Quarter Horse Association’s rule banning clones of registered quarter horses from also being registered violated section 1 of the Sherman Antitrust Act. The author explores potential procompetitive justifications that AQHA has established for its rule, including the negative impact clones would likely have on the genetic variation of the breed and genetic diseases. The author argues that the district court erred by overlooking the plausibility of the justifications and that the rule of reason analysis should …

Modern Private Data Collection And National Security Agency Surveillance: A Comprehensive Package Of Solutions Addressing Domestic Surveillance Concerns, Shaina Kalanges

Northern Illinois University Law Review

Each day as we add cell phone apps, adopt trending tweets, or ask Siri for assistance, our information is being captured, stored, and even analyzed for repackaging in a profile. Private companies are working very hard to find the best ways to read consumers in the digital world to target them for advertisement. Meanwhile, the National Security Agency (NSA) is working very hard to stay connected to these big data collection methods to find the best way to target individuals for surveillance. This Comment provides insight into modern methods of NSA surveillance through examining section 215 USA Patriot Act and …

Illinois Supreme Court Should Consider Reasonable Doubt Issue, Marc D. Falkoff

College of Law Faculty Publications

Last month, a state appellate court reversed the conviction of Mark Downs —a gang member serving 70 years for the murder of a 6-year-old boy — because the trial court attempted to answer a jury question about the definition of reasonable doubt. The case marks at least the third time since 2011 that serious convictions have been overturned because a judge tried to explain the meaning of reasonable doubt to a jury. Although there was good reason to reverse the conviction in Downs, the legal premise the appellate court relied on was flawed. At this point, the Illinois Supreme Court …