Law Commons^™

Micro-Meso-Macro Comparative Law: An Essay On The Methodology Of Comparative Law, Alessandro Romano

Chicago-Kent Journal of International and Comparative Law

There are strong analogies between the quest for a methodology of comparative law and the broader debate on the epistemology of social and natural sciences. In this vein, after having explored the dispute between holists and reductionists, I argue that the dichotomy between micro and macro comparative law ought to be abandoned. Building on the insights of social theory, I introduce a specific framework to bridge the two levels of enquiry through a meso analysis. This framework is applied to investigate the robustness of the findings of the legal origin theory.

Reigning In A Rogue: Achieving And Drafting A North Korean Nuclear Deal, James Williams

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Global Protection Of Free Speech Rights For American Journalists: Admirable Or Overkill?, Kelsey Bates

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Piercing The Corporate Veil Us Lessons From Romania And Slovakia, Alexandra Horvathova, Catalin Gabriel Stanescu

Chicago-Kent Journal of International and Comparative Law

This article describes and analyzes the doctrine of piercing the corporate veil in various jurisdictions across the world. First, it introduces the development and history of this doctrine in the United States - the jurisdiction, which has nurtured this legal concept for several centuries. Second, it analyzes its possible implementation within two chosen jurisdictions in Central and Eastern Europe: Romania and Slovakia. The authors’ aim is to assess their home jurisdictions and examine whether these jurisdictions apply the doctrine, if so, then in which form and to what extent. The authors analyze different areas of their respective legal systems - …

The Time Is Nigh: A Proposal For An International Patent System, Ben Mceniery

Chicago-Kent Journal of Intellectual Property

The world is slowly but inexorably moving towards adopting an integrated global patent system. It is inevitable that the present inefficient and splintered system in which patents must be separately obtained and enforced in each nation state must evolve to make obtaining global patent protection an achievable proposition for those other than just the wealthiest multinational corporations. The global patent system proposed in this article allows a patent applicant to file a single patent application in an international patent office, have that patent application examined in accordance with a uniform patentability standard, and results in the grant of a unitary …

Open Source Tactics: Bargaining Power For Strategic Litigation, James Skelley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

With Enough Eyeballs All Searches Are Diligent: Mobilizing The Crowd In Copyright Clearance For Mass Digitization, Maurizio Borghi, Kris Erickson, Marcella Favale

Chicago-Kent Journal of Intellectual Property

Digitization of 20th Century cultural heritage is severely restricted due to the real or potential subsistence of copyright and related rights. Under the laws on orphan works introduced in many countries, items whose copyright status is uncertain may possibly be lawfully digitized, on condition that a “diligent search” of the copyright owners has been performed. However, carrying out diligent searches on large collections is a lengthy and expensive process, which may discourage institutional users from embarking on large-scale digitization. While the problem of performing diligent searches has been so far approached in a “centralized” manner by individual institutions, the article …

Neglected Diseases: How Intellectual Property Can Incentivize New Treatment, Vinita Banthia

Chicago-Kent Journal of Intellectual Property

No abstract provided.

In Defense Of Patent Trolls: Patent Assertion Entities As Commercial Litigation Funders, Jean Xiao

Chicago-Kent Journal of Intellectual Property

This paper is the first to defend and commend the role of patent trolls in litigation. It argues that trolls either are not the sole source of patent litigation ills or are not responsible for these ills in the first place. Next, it demonstrates that trolls provide the same litigation-related benefits as commercial litigation funders, which also finance patent lawsuits. Troll commentators have ignored these benefits, for which funders are praised, in the evaluation of trolls. Finally, this paper explains that eliminating trolls will not only close off a source of these benefits but also worsen problems by shifting trolling …

Thoughts On The Relationship Between The Supreme Court And The Federal Circuit, Timothy B. Dyk

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Abuse Of Supreme Court Precedent: The "Historic Kinship", David W. Barnes

Chicago-Kent Journal of Intellectual Property

In Sony Corp. of America v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a “historic kinship” between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are …

Why The Supreme Court Should Use Ariosa V. Sequenom To Provide Further Guidance On U.S.C. § 101 Patent Eligibility, Naira Rezende Simmons

Chicago-Kent Journal of Intellectual Property

35 U.S.C. § 101 provides patent protection to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The Supreme Court previously concluded that Congress intended patentable subject matter to “include anything under the sun that is made by man.” Nevertheless, over the past five years the U.S. Supreme Court has made a series of decisions that narrowed the scope of subject matter eligible for patent protection.

In Mayo the court held that correlations between the concentrations of a metabolite in the blood and the concentration of a drug are not patent …

Panel Discussion: Remembering Justice Scalia In Ip Cases, Graeme Dinwoodie

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Whither (Wither?) Geographical Indications? The Case Against Geographical Indications And For Appellations Of Origin In An Era Of Glocalization, Benjamin Robert Hopper

Chicago-Kent Journal of Intellectual Property

One of the most hotly contested legal debates in international intellectual property law today concerns geographical indications (GIs) and appellations of origin (AOOs), referred to herein using the umbrella term “indication of origin” (IO). Central to the debate are two different systems for IOs—the sui generis system of AOOs and the like promoted by IO advocates like the EU (generally civil law jurisdictions) and the system promoted by IO skeptics like the US (generally common law jurisdictions) under which GIs are subsumed within a pre-existing trademark system. These divergent IO systems are manifestations of deepening fragmentation in the international IO …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Tetzlaff: Has The "Undue Hardship" Test Become Undue?, Alex J. Beehler

Seventh Circuit Review

As the wage-market remains stagnant, and student indebtedness continues to rise, many graduates struggle to balance their student loan debt. Generally, when a debtor files for bankruptcy, her student loan debt is not dischargeable. However, under 11 U.S.C. § 523(a)(8), debtors can discharge their student loans through bankruptcy if they can prove that maintaining those student loan debts would impose an "undue hardship" upon themselves. Unfortunately, Congress did not define what "undue hardship" meant when enacting the bankruptcy code. Courts have since been left to interpret the definition of "undue hardship," and many do so in different ways.

Across the …

Is The Injury Real?: The Seventh Circuit Extends Article Iii Standing To Data Breach Victims, Emily P. Linehan

Seventh Circuit Review

Data breaches are becoming a more frequent and more troubling part of modern life. When customer or employee information is stolen en masse, lawsuits often follow. Courts have frequently dismissed such cases very early for want of Article III standing. For purposes of standing, courts are faced with the question of whether or not the fact of a breach is sufficient for plaintiffs to bring lawsuits against the credit card companies, employers, or stores that, as victims of a cyberattack, have compromised the information of hundreds or thousands. But the real victims are those whose personal information has been stolen. …

Remittitur In Civil Rights Cases: Where The Seventh Circuit Went Wrong In Adams V. City Of Chicago, Kelsey N. Weyhing

Seventh Circuit Review

This nation is currently engaged in vigorous discussion about how to address brutality and targeting of minorities committed by law enforcement. In some cases, even where liability is admitted as to racially targeted policing, a court may significantly reduce the amount of damages awarded by a jury to victims of police brutality through use of a procedure call “remittitur.” Remittitur occurs when a trial judge determines that a jury award is excessive, and offers the plaintiff the option of accepting a reduction in the jury verdict or proceeding to a new trial. Although the Seventh Amendment provides that “no fact …

Impunity For Snake Oil Merchants?: The Seventh Circuit Upholds The Class Action As A Vehicle For Consumer Protection, Stephen Pigozzi

Seventh Circuit Review

The class action is often the only way for victims of consumer fraud to pursue a remedy. Several federal circuit courts have recently adopted the heightened ascertainability requirement—a requirement that makes certifying a consumer class almost impossible. A plaintiff can only meet the heightened ascertainability requirement by showing that members of her proposed class can be identified in a reliable and administratively feasible way. This typically requires documentary proof of class membership. For classes made up of purchasers of deceptive low-cost products who have not kept their receipts, heightened ascertainability has served as an insurmountable barrier to certification.

In Mullins …

"Equity Will Not Enjoin A Libel": Well, Actually, Yes, It Will, Ann C. Motto

Seventh Circuit Review

The First Amendment prohibits prior restraints on speech. Indeed, prior restraints are the most serious and the least tolerable infringements on First Amendment rights. Because of this, for nearly 200 years, courts stood by the maxim that "equity will not enjoin a libel"; traditionally, money damages were the only remedy available to a defamed plaintiff. However, there is a modern trend among some state and federal courts allowing the issuance of a narrow, permanent injunction against statements that have been adjudicated defamatory.

In December 2015, the Seventh Circuit Court of Appeals in its decision McCarthy vs. Fuller became the second …

Deference To The Lower Court: How The Seventh Circuit Improperly Granted Habeas Corpus Relief In Jensen V. Clements, David J. Welch

Seventh Circuit Review

As Justice Blackstone once opined, a writ of habeas corpus, oft referred to as the “great Writ,” is “another Magna Carta” established to safeguard people imprisoned in violation of the law. Codified under 28 U.S.C. § 2254, the writ compels a judicial body to review the legality of a state prisoner’s conviction. A granted writ of habeas corpus may require the court to set aside or vacate the conviction or detention. If a petitioner’s case has already been adjudicated on the merits in state court, then the writ cannot be granted. However, if the petitioner can show that either the …

Filming Police & Legal Dramas: Examining The Influence Of Television Programs On The Legal Profession And Law Enforcement, Ryan D. Suniga

Seventh Circuit Review

Criminal trials make for inherently compelling television. There are very few things as dramatic as watching an individual being forced to defend their liberty. Because of the spectacle associated with criminal proceedings, the legal drama has evolved into a staple of television programing. Media programing like Serial and Making a Murderer can have profound effects on the operation and integrity of criminal proceedings. While televising criminal justice proceedings adds a level of accountability to those procedures, it also creates an opportunity for abuse by allowing the media to negatively influence individuals vital to the integrity of the criminal justice system …

A Proposal For Eliminating Adjudicative Loopholes Under Statutory Law Of Trade Secrets In The Seventh Circuit, Anna A. Onley

Seventh Circuit Review

Today, when 70% of business value is derived from intangible assets, and trade secret misappropriation (TSM) is the most frequently litigated form of intellectual property protection, it is critical to ensure that judicial remedies for misappropriation of intellectual property remain adequate without encouraging abusive litigation. With this goal in mind, in 1979, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Trade Secrets Act (UTSA) in order to ensure a uniform and consistent treatment of trade secrets among the states. The Uniform Act displaced business torts claims that arise in common law, but only if those claims …

Suspect Assertions Of Copyright, Edward Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Fair Use’S Unfinished Business, Rebecca Tushnet

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Challenges Of Following Good Advice About Copyright And The First Amendment, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Frand Market Failure: Ipxi’S Standards-Essential Patent License Exchange, Jorge L. Contreras

Chicago-Kent Journal of Intellectual Property

This case study pertains to Intellectual Property Exchange International, Inc. (IPXI), which was formed in 2008 to create a market-based trading exchange for aggregated patent license rights, particularly standards-essential patents (SEPs). IPXI based its model on existing commodities exchanges, proposing that non-exclusive patent licenses could be standardized, commoditized, and traded on an open market, thus eliminating costly and inefficient bilateral negotiations and providing a royalty rate likely to be viewed as “reasonable”. IPXI’s most ambitious offering involved a portfolio of 194 U.S., European and other patents deemed essential to IEEE’s 802.11n “Wi-Fi” standard. IPXI offered up to 50,000 tradable Unit …

The Right To Destroy Under Droit D’Auteur: A Theoretical Moral Right Or A Tool Of Art Speech?, Sofie G. Syed

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Sherlock Holmes & The Case Of The Contested Copyright, Jessica L. Malekos Smith

Chicago-Kent Journal of Intellectual Property

For generations, Sir Arthur Conan Doyle’s novels and short stories on the adventures of Sherlock Holmes have captivated the minds of readers and fueled a lucrative intellectual property market. The historical trajectory of international copyright protections to this literary canon, however, is an equally intriguing, if not mysterious, page-turner. This Note explores the procedural history of Klinger v. Conan Doyle Estate, Ltd., and examines how the literary characters of Sherlock Holmes and Dr. John H. Watson can simultaneously exist in the public domain, while certain story elements still remain under copyright protection in the United States until 2022.

Navigating The Legal Landscape Of A Subversive Art Form: Protecting Expression And Neglecting Embodiment, Dillon Henry Stern

Chicago-Kent Journal of Intellectual Property

No abstract provided.