Law Commons^™

Whose Business Is Your Pancreas?: Potential Privacy Problems In New York City's Mandatory Diabetes Registry (With N. Gingo Et Al.), Harold J. Krent, Nicholas Gingo, Monica Kapp, Rachel Moran, Mary Neal, Meghan Paulas, Puneet Sarna, Sarah Suma

All Faculty Scholarship

New York City authorities in 2006 formulated a policy requiring that medical data from all diabetics in the City be stored in a centralized registry. This diabetic registry is the first in the nation to require collection of personal testing data for the purpose of monitoring treatments for a noninfectious disease. The registry represents an important step on the path toward better understanding and managing of the disease. Nonetheless, establishment of the registry threatens privacy in a number of ways. Many individuals are open about their diabetes, but others prefer to keep that information to themselves, whether because of concerns …

Brown And The Colorblind Constitution, Christopher W. Schmidt

All Faculty Scholarship

This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …

Indigenous Peoples And Gene Disputes, Debra Harry

Chicago-Kent Law Review

Wary from decades exploitation in the name of science, Indigenous peoples typically approach externally-generated research with caution, and for good reason. Indigenous peoples have been on the receiving end of research carried out in insensitive, and sometimes, harmful ways. Research has historically been a top-down, outside-in process, with Indigenous peoples serving merely as research subjects, with little opportunity for meaningful participation or benefit from the outcomes of the research. Over the past two decades, with the advent of the Human Genome Project and other genetic research projects, there has been a corresponding increase in genetic research projects that put Indigenous …

What I Have Learned From The Reactions To My Books, Michael Crichton

Chicago-Kent Law Review

No abstract provided.

You Don't Own Me: Recommendations To Protect Human Contributors Of Biological Material After Washington University V. Catalona, Laura B. Rowe

Chicago-Kent Law Review

As research using human biological materials has rapidly developed, so too has the debate over the ownership of these highly valuable materials. Most recently, the Eighth Circuit in Washington University v. Catalona held that research participants do not retain any ownership interest in the biological materials they contribute to research. This note argues that the misguided Catalona decision, in combination with unclear, outdated, and inadequate federal research regulations, has left human contributors of biological material largely unprotected and vulnerable to the goals of researchers, institutions, and biotechnology firms. Accordingly, this note proposes critical amendments to the federal research regulations that …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Who Owns Your Body? A Study In Literature And Law, Lori Andrews

Chicago-Kent Law Review

No abstract provided.

Expressive Minimalism And Fuzzy Signals: The Judiciary And The Role Of Law, Michele Goodwin

Chicago-Kent Law Review

The proper role of courts engenders significant debate. Yet, what seems better settled is the principle that courts are the place at which the common law is developed. Its genesis and modifications evolve out of the juridical process and when that process becomes encumbered or deferred to the legislature the role of the judiciary is called into question. This essay makes the case that expressive minimalism too often governs the common law judicial approach to biotechnology. The cases visited in this domain test our capacity to understand whether life is appropriately described as being beyond the definition of property, as …

What Is Owed Participants In Biotechnology Research?, Julie A. Burger

Chicago-Kent Law Review

The legal and ethical protections afforded human subjects of research afford individuals who participate in research certain rights. Potential participants must give voluntary and informed consent to participate, they have the right to withdraw from research, they cannot be asked to waive certain rights, and they have the right to choose which studies they will participate in. But researchers, institutions, patient advocacy groups, and ethicists continue to debate how these rules should be applied in the context of genetics research—projects that involve using the individual's tissue or the individual's genetic information, such as gene sequences, and associated medical information. Evidence …

Upstream Without A Paddle: Gene Patenting And The Protection Of The "Infostructure", Seth Shulman

Chicago-Kent Law Review

The U.S. patent system, designed to protect rights to specific, marketable gadgets, has increasingly over the past few decades granted patents on comparatively abstract and amorphous ideas that stretch the system beyond recognition. Overly broad patents, and patents too far "upstream" from the marketplace, I argue, undermine the patent regime, hamper innovation, and prove exceedingly difficult to adjudicate. Using a series of conceptual and historical analogies, I attempt to assess the patenting of genes and other broad, "upstream" patents from a public policy context, emphasizing, as many are coming to realize, that things work best in the knowledge-based economy when …

Gene Patents And The Product Of Nature Doctrine, John M. Conley

Chicago-Kent Law Review

Gene patents have proven to be enormously controversial, evoking a strong response from many categories of skeptics. Objections have focused on the foreclosure of research, the potential denial of healthcare, or the proper application of the patent laws. Gene patents also tend to trigger an elemental response that lies at the core of almost every objection: You shouldn't be able to patent a gene! This article focuses on the latter point, restating it as a question of legal doctrine: Why is it that the law has routinely treated genes as patentable inventions rather than unpatentable natural phenomena? Part II reviews …

Human Gene Patents: Proof Of Problems?, Timothy Caulfield

Chicago-Kent Law Review

The patenting of human genes has been the focus of intense policy debate. The concerns associated with gene patenting are diverse, ranging from dignity based critiques to suggestions that patents will drive up the cost of health care. But the two concerns that have generated the most policy attention are that they hurt basic research (also known as the "anti-commons" problem) and access to useful technologies. The goal of this short comment is to question the degree to which existing evidence supports the speculation about these two justifications for patent reform. While the issues associated with gene patents are complex …

Intellectual Property And The Politics Of Emerging Technology: Inventors, Citizens, And Powers To Shape The Future, Stephen Hilgartner

Chicago-Kent Law Review

This article argues that there is a mismatch between traditional intellectual property doctrine and the politics of intellectual property today. To examine the nature of the mismatch, I contrast two frameworks that both appear in contemporary debate about intellectual property: the traditional discourse, which focuses on innovation policy, and a newer, less clearly codified discourse that views intellectual property issues from the perspective of the politics of technology. This latter discourse focuses on the challenge of democratic governance in a world where emerging technologies have assumed a central role in constituting the future, raising far-reaching questions about how they should …

Series Limited Liability Companies: A Possible Solution To Multiple Llcs, Sandra Mertens

Chicago-Kent Law Review

Although series LLCs are now over eleven years old, they remain mainly theoretical. Only seven states to date have enacted statutes authorizing series LLCs, and the drafters of the recent Revised Uniform Limited Liability Company Act considered and rejected provisions creating series LLCs. Many practicing attorneys continue to use multiple LLCs where a series LLC may be appropriate. This Note examines the general characteristics of series LLCs and state legislation authorizing them, the uncertain state and unanswered questions surrounding this new entity form, and the recent developments in case law and usage of series LLCs. Finally, this Note recommends that …

Judicial Activism V. Judicial Abdication: A Plea For A Return To The Lochner Era Substantive Due Process Methodology, Brandon S. Swider

Chicago-Kent Law Review

Amid the fierce battles that take place during the confirmation process of a Supreme Court justice, surprisingly little attention is given to the fact that both sides of the political spectrum generally agree on a matter of profound constitutional importance—namely, the proper level of scrutiny courts are to exact with respect to state and federal legislation. Presently, and for the better part of the last 70 years, the dominant attitude among judicial conservatives and liberals alike is that courts have no authority to strictly scrutinize the overwhelming majority of legislation enacted by state and federal legislatures.

This Comment argues that …

Freedom Comes Only From The Law': The Debate Over Law's Capacity And The Making Of Brown V. Board Of Education, Christopher W. Schmidt

All Faculty Scholarship

From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating …

The International Joint Commission And Great Lakes Diversions: Indirectly Extending The Reach Of The Boundary Waters Treaty, A. Dan Tarlock

All Faculty Scholarship

The 1909 Boundary Waters Treaty (Treaty) is a model of, international water resources cooperation because it provides a permanent dispute mechanism, the six member International Joint Commission (IJC). Thus, both Canada and the United States have much to celebrate on the 100th anniversary of the Treaty. However, the most interesting aspect of the Treaty is the regime's ability to evolve through state practice beyond its original dispute resolution function, despite the inconsistent support for IJC involvement in transboundary water issues of the United States. The Treaty has been severely criticized by governments and non-governmental organizations (NGOs), especially in, Canada, for …

Vol. 25, No. 4, Paul R. Klenck

The Illinois Public Employee Relations Report

Contents:

Caught in the Web: On and Off-Duty Use of Computers, by Paul R. Klenck

Recent Developments

Further References, compiled by Yoo-Seong Song

Reexamining The Functions Of Trademark Law, Mohammad Amin Naser

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

The Intra-Enterprise Conspiracy Doctrine In American Needle Inc. V. National Football League: Antitrust Law Continues Its Path Toward Rationality, John O. Gunderson

Seventh Circuit Review

In American Needle Inc. v. National Football League, the Seventh Circuit was presented with the question of whether the National Football League and its affiliates should be held liable for a violation of the Sherman Act as a result of the league’s exclusive apparel licensing contract with Reebok. This article traces the evolution of the Supreme Court’s intra-enterprise conspiracy doctrine, which stated that even a parent company and its wholly owned subsidiary could conspire in such a way as to invoke the Sherman Act. The intra-enterprise conspiracy doctrine was overturned in Copperweld Corp. v. Independence Tube Corp. in …

Just A Bunch Of Fusspots And Nitpickers? That Pretty Much Sums It Up, Patrick D. Austermuehle

Seventh Circuit Review

The Seventh Circuit has a reputation for being harshly critical of attorneys who fail to follow the court’s procedural rules. Whether by sanction, written opinion, or oral rebuke, the attorney who fails to abide by the court’s rules can be sure of some disciplinary action. In Smoot v. Mazda Motors, the court asked whether the judges responsible for the strict enforcement of these rules are simply being “fusspots and nitpickers.”

This Note will address the court’s question through an empirical survey of the manner and frequency by which attorneys are disciplined for failing to follow the court’s rules. The …

Let's Get It Straight: The Effect Of Fehribach, The Ha2003 Liquidating Trust, And Joyce On A Debtor's Pre-Bankruptcy Professionals And Where To Go From Here, Jamie L. Johnson

Seventh Circuit Review

The Seventh Circuit has recently decided a trilogy of cases in which stockholders or creditors attempted to hold a business’s professionals—such as financial advisors and investment bankers—liable for the losses they suffered as a result of the business’s bankruptcy or financial demise. In all three of the cases, Fehribach v. Ernst & Young LLP, The HA2003 Liquidating Trust v. Credit Suisse Securities (USA) LLC, and Joyce v. Morgan Stanley & Co., the Seventh Circuit declined to hold the professionals liable, thereby eliminating a potential “deep pocket” for the creditors or stockholders. The outcomes of these cases were …

Analyzing A Pretrial Detainee's § 1983 Claims Under The Deliberate Indifference Standard Amounts To Punishment Of The Detainee, Leslie B. Elkins

Seventh Circuit Review

While the Eighth Amendment holds that a convicted inmate may be punished if that punishment is not “cruel and unusual,” due process requires that a pretrial detainee not be punished at all. In 1979, the Supreme Court declared that the rights of a pretrial detainee are “at least as great” as those afforded a convicted prisoner. The Seventh Circuit’s recent decision Klebanowski v. Sheahan illustrates the modern trend of using the same “deliberate indifference” standard used to analyze convicted prisoners’ § 1983 claims when analyzing pretrial detainees’ § 1983 claims. By scrutinizing the way modern courts assess pretrial detainees’ § …

Welcome To The Family: A New Class Of Cognizable Claims Under The Pregnancy Discrimination Act, Teresa A. Minnich

Seventh Circuit Review

In its recent decision Hall v. Nalco, the Seventh Circuit became the first Federal Circuit Court of Appeals to recognize a Title VII claim arising from adverse employment action following from a woman’s pursuit of in vitro fertilization, a type of infertility treatment. The Seventh Circuit’s decision creates a possible conflict with the Eighth and Second Circuits, which have both refused to recognize a cognizable Title VII claim where an employer excludes infertility treatments from insurance benefits plans. Furthermore, the Seventh Circuit’s reasoning articulates a murky distinction between childbearing capacity and fertility—although discrimination based on childbearing capacity violates Title …

License To Kill (The Dream Of Fair Housing): How The Seventh Circuit In Craigslist Gave Websites A Free Pass To Publish Discriminatory Housing Advertisements, Joseph J. Opron Iii

Seventh Circuit Review

In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., the Seventh Circuit held that Craigslist, Inc., could not be held liable under the Fair Housing Act’s ban on discriminatory advertisements for over 120 discriminatory housing advertisements complained about by the Chicago Lawyers’ Committee that were posted on Craigslist’s website. The court held that although newspapers and virtually every other publishing medium are consistently found liable under the Fair Housing Act’s ban on discriminatory advertisements, interactive computer service providers, such as Craigslist, are afforded civil immunity as a publishers or speakers of third-party content under the …

Policing Thought: United States V. Khattab And The Mens Rea Requirement Of 21 U.S.C. § 841, Anne M. Walker

Seventh Circuit Review

In United States v. Khattab, the Seventh Circuit identified a split between the circuits as to the mens rea required by the statute that criminalizes possessing or distributing precursor chemicals to illegal drugs. The relevant mens rea is “knowingly, or having reasonable cause to believe[.]” While the Tenth Circuit interprets “having reasonable cause to believe” to mean that a defendant must have something close to actual subjective knowledge that a chemical will be used to manufacture methamphetamines, the Eighth, Ninth, and Eleventh Circuits interpret “having reasonable cause to believe,” to mean that an objective standard can be applied. The …

Unraveling Tinker: The Seventh Circuit Leaves Student Speech Hanging By A Thread, Marcia E. Powers

Seventh Circuit Review

In the bedrock student speech case Tinker v. Des Moines Independent School District, the Supreme Court ruled that students do not shed their First Amendment rights at the schoolhouse gate and that a school cannot prohibit student speech absent a “substantial disruption.” The Supreme Court defined “substantial disruption” as speech that “materially and substantially disrupt[s] the work and discipline of school.” In 2008, the Seventh Circuit adopted a new definition of “substantial disruption” in Nuxoll v. Indian Prairie School District No. 204, a case where a student challenged his school’s prohibition of the t-shirt slogan “Be Happy, Not …

A Mixtape Dj's Drama: An Argument For Preemption Of Georgia's Unauthorized Reproduction Law, Jennifer Geller

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Patentable Subject Matter Requirements: An Evaluation Of Proposed Exclusions To India's Patent Law In Light Of India's Obligations Under The Trips Agreement And Options For India, Rajnish Kumar Rai

Chicago-Kent Journal of Intellectual Property

No abstract provided.