Law Commons^™

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent …

Class Dismissed: Compelling A Look At Jurisprudence Surrounding Class Arbitration And Proposing Solutions To Asymmetric Bargaining Power Between Parties, Matthew R. Hamielec

Chicago-Kent Law Review

Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.

Corporations litigated such class …

The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor

Chicago-Kent Law Review

No abstract provided.

The Collateral Order Doctrine In Disorder: Redefining Finality, Matthew R. Pikor

Chicago-Kent Law Review

No abstract provided.

Protecting Public Employee Trial Testimony, Joseph Deloney

Chicago-Kent Law Review

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, …

Ears Of The Deaf: The Theory And Reality Of Lay Judges In Mixed Tribunals, Sanja Kutnjak Ivković

Chicago-Kent Law Review

This paper explores mixed tribunals, a unique form of lay participation in which lay and professional judges make legal decisions jointly. A short overview of different types and sizes of mixed tribunals around the world will be discussed first. Then, the paper will elaborate on the theoretical arguments that hypothesize about the nature and extent of interaction in mixed tribunals. These theoretical arguments, developed using the status characteristics theory, will be assessed using the evidence obtained in empirical studies of mixed tribunals. In addition, the paper will discuss other potential challenges faced by mixed tribunals. In the end, the paper …

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Four Models Of Jury Democracy, Jeffrey Abramson

Chicago-Kent Law Review

This article proposes a theory of “representative deliberation” to describe the democratic ideal that jurors seek to practice. Given its long history, the jury does not fit neatly into any one of the most familiar types of democracy, such as direct democracy, representative democracy, or deliberative democracy. However, the jury does hold together elements of all of these theories. In line with direct democracy, we select jurors from the people-at-large. In line with representative democracy, we seek to draw jurors from a representative cross-section of the community. In line with deliberative democracy, jurors talk as well as vote and seek …

Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder

Chicago-Kent Law Review

In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …

Preventing Juror Misconduct In A Digital World, Thaddeus Hoffmeister

Chicago-Kent Law Review

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

Some Limitations Of Experimental Psychologists' Criticisms Of The American Trial, Robert P. Burns

Chicago-Kent Law Review

For decades, psychologists have conducted experiments that have suggested severe limitations on human cognitive capacities. Many have suggested that these results have important, and largely negative, consequences for an assessment of the reliability of the American trial. They have pointed persuasively at the disturbing number of exonerations of those convicted after trial. And some have gone on to make specific proposals for the incremental, and sometimes radical, changes in the conduct of the adversary trial. This essay places these studies, as forcefully presented by Professor Dan Simon, in a normative context, and argues that they are more powerful in suggesting …

The Conflict Between Forum-Selection Clauses And State Consumer Protection Laws: Why Illinois Got It Right In Jane Doe V. Match.Com, Marty Gould

Chicago-Kent Law Review

To what extent can companies “contract out” of state consumer protection statutes through the use of choice of law and forum selection clauses in standard form adhesion contracts? The only court in Illinois to rule on the issue, a state court case dealing with Match.com, held that the Illinois Dating Referral Services Act (IDRSA) voids forum-selection clauses contrary to stated Illinois public policy, as declared by Illinois statutes. Outside of Illinois, however, federal courts have held that the exact same Match.com forum-selection clause was valid and enforceable despite being in direct conflict with similar statutes in other states. These cases …

Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood

Chicago-Kent Law Review

A survey of cases where federal courts abstain from hearing cases related to existing state court cases under the Fair Debt Collection Practices Act (FDCPA) reveals varying approaches and theories underlying those courts’ abstentions. This article attempts to distinguish FDCPA claims related to the validity of the underlying debt from claims arising out of debt collectors’ conduct in collecting a debt, and recommends that federal courts avoid abstaining from the latter. When Congress passed the FDCPA, it intended to provide access to a forum of the consumer’s choice to enforce their rights under the Act by serving as “private attorneys …

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …