Law Commons^™

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 This note argues that the misguided Catalona decision, in combination with unclear, outdated, and inadequate federal research regulations, has left human contributors of biological material largely unprotected and vulnerable to the goals of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.

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 …

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 …

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

Chicago-Kent Law Review

No abstract provided.

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 …

From Borden To Billing: Identifying A Uniform Approach To Implied Antitrust Immunity From The Supreme Court's Precedents, Jacob L. Kahn

Chicago-Kent Law Review

The doctrine of implied antitrust immunity allows courts to reconcile two inconsistent congressional decrees: (1) that unrestrained competition—the primary goal of the antitrust laws—will produce the most efficient results in any marketplace; and (2) that artificial restraints on competition—as achieved through federal regulation—are necessary to ensure the proper functioning of certain industries. Thus, even when Congress has not expressly exempted a defendant's conduct from the antitrust laws, the fact that the conduct occurred in a regulated industry may sometimes be enough to justify an implied exemption. Due to the importance of the antitrust laws, however, the Supreme Court traditionally has …

Reading Vico For The School Of Law, Willem J. Witteveen

Chicago-Kent Law Review

In his oration On the Study Methods of Our Time, Giambattista Vico conceived of the jurist as a person well schooled in law and in rhetoric, able to perform as an orator and a statesman. This ideal contrasts markedly with the modern conception of the lawyer as primarily a rule-technician and a judge. Studying the educational program unfolded by Vico, it becomes apparent that the arts and sciences of oratory, law and philosophy for him converge in the role model of the prudent legislator. This role model has become virtually meaningless in the culture of modem law through an …

Vico's "Ingenious Method" And Legal Education, Francis J. Mootz Iii

Chicago-Kent Law Review

Recent calls to reform legal education have culminated in the 2007 Carnegie Report, which is attracting substantial attention and promises to have tremendous influence on American law schools. In this article I survey these calls for reform and argue that they should be put into a broader historical, philosophical and ethical perspective. Three hundred years ago the Italian humanist, Giambattista Vico, delivered his famous oration that serves as the focal point for this symposium, On the Study Methods of Our Time. This oration lamented the rise of Cartesian critical philosophy at the expense of the cultivation of imagination, prudence, …

Vichian Moral Philosophy: Prudence As Jurisprudence, Donald Phillip Verene

Chicago-Kent Law Review

Vico discerned in Descartes' method for conducting right reasoning in the sciences a new and completely modern conception of human knowledge. This conception excludes those fields of study that the ancients believed to be the basis of civil wisdom, namely, eloquence or rhetoric and jurisprudence or law. Vico reminds us that what philosophy was for the Greeks, jurisprudence was for the Romans. In accordance with the Digest, Vico held that Roman law is civil wisdom itself: all that is necessary for proper human conduct is specified in the law. The law itself must be reasonable and just. The law, …

Rhetoric And Its Abuses: How To Oppose Liberal Democracy While Speaking Its Language, Guy Haarscher

Chicago-Kent Law Review

I try to analyze the rhetoric that is being used in contemporary debates concerning the defense of the values of liberal democracy. My main point is the following: nowadays, human rights and liberal democracy constitute, as it were, the fundamental values of the political sphere. But, as we know, people very often only pay lip service to these political values. Schematically speaking, there are two opposed ways of trying to evade the constraints of human rights and the values of liberal democracy. I shall call the first one the "frontal attack": the "enemy" explicitly defends values that are radically at …

On The (Legal) Study Methods Of Our Time: Vico Redux, Marianne Constable

Chicago-Kent Law Review

This essay draws on the form and spirit of Vico's On the Study Methods of Our Time to comment on intellectual and institutional approaches to U.S. legal studies today. It compares rhetoric to the many disciplines—philosophy, economics, sociology, political science, anthropology, poetry, and history—that take law as their subject matter. It argues that law is only partly understood by those who characterize it as command or as morality, as coercive system or as system of rules. It is only partly understood by those who reject law-on-the-books in favor of the empirical study of social behavior. It argues instead that attending …

The Decline Of Traditional Pensions, The Impact Of The Pension Protection Act Of 2006, And The Future Of America's Defined-Benefit Pension System, Joshua Gad-Harf

Chicago-Kent Law Review

Congress passed the Pension Protection Act of 2006 to provide economic security for millions of Americans dependent on traditional defined-benefit pension plans, plans where an employer has promised to pay for the retirement of its employees. The bill was necessitated by the many employers who had terminated their plans both inside and outside of bankruptcy protection. This note will discuss the history of the defined-benefit pension system, the ways these plans can be terminated, and the problems these terminations pose for employers, employees, and the American taxpayers. It will argue that the Act and its exceptions for those in the …

Impala V. Commission: Changing The Tune Of European Competition Law, Elena Vranas-Liveris

Chicago-Kent Law Review

On July 13, 2006, the European Union's Court of First Instance made history in Impala v. Commission, a case which annulled the 2004 decision of the European Commission that cleared the merger between music industry majors Sony and Bertelsmann AG. This was the first time that the Court of First Instance reversed a Commission merger clearance decision. This comment examines the case's internal ramifications for the EU, as well as global ramifications for merger control law generally. This comment concludes that Impala marks a major structural change within the EU. By establishing itself as an authority in competition law, …

Labor Provisions In Trade Agreements: From The Naalc To Now, Frank H. Bieszczat

Chicago-Kent Law Review

Globalization holds the promise of bringing employment and wealth to historically underdeveloped areas. Much of the enthusiasm, though, has been dampened by concerns of low wages and poor working conditions. These concerns have resulted in the inclusion of labor provisions in American free trade agreements, including the inclusion of the North American Agreement on Labor Cooperation (NAALC) as a side agreement to NAFTA. This note argues the labor provisions found in these trade agreements fail to achieve the United States' stated goal of using free trade agreements as vehicles to improve labor conditions globally. Too much responsibility is placed on …

Vico's Principle Of Sensus Communis And Forensic Eloquence, Thora Ilin Bayer

Chicago-Kent Law Review

As professor of Latin eloquence at the University of Naples, Vico instructed young students in the principles of rhetoric joined with the principles of Roman jurisprudence. Vico understood the art of rhetoric as based in the art of topics and the art of memory. The places of memory reside in the sensus communis, which is the treasure-house of the images and meanings that underlie the life of all nations. Vico, like Shaftesbury, defines sensus communis as "communal sense," the shared sensibilities that exist among a given people, and ultimately among the whole human race. These common sensibilities are the …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Introduction To Recalling Vico's Lament: The Role Of Prudence And Rhetoric In Law And Legal Education, Francis J. Mootz Iii

Chicago-Kent Law Review

No abstract provided.

Law And Politics As Play, Lief H. Carter

Chicago-Kent Law Review

Liberal theory fails to cope effectively with the common human tendency, under certain conditions, to brutalize other humans. Liberal theory does not adequately accommodate the reality that humans contest concepts of rights, justice, and truth. The necessarily contextual, contested, and contingent character of substantive liberal principles necessarily prevents them, qua principles, from effectively inhibiting human brutality. Liberal theory also does not take adequate account of the passionate and non-rational character of the human animal. Giambattista Vico's remarkably prescient and comprehensive eighteenth century vision of the human condition anticipates these two barriers to achieving liberalism's pacific political and social vision. Vico …

Sublime Jurisprudence: On The Ethical Education Of The Legal Imagination In Our Time, Richard K. Sherwin

Chicago-Kent Law Review

The broad dissemination of digital communication technologies is raising disturbing questions about the nature of truth as representation. This epistemological crisis shares an uncanny affinity with the crisis of representation that lay at the heart of the baroque era during the seventeenth century in Europe. The resolution of that crisis, through the work of Descartes and others, came on the heels of a philosophical shift from the image to the sign. However, as Vico presciently realized 300 years ago, Descartes' semiotic model, together with the totalizing rational method that accompanies it, are ill-suited to civic flourishing. Today, signifiers shorn of …

An International And Islamic Perspective Of Hamas, Amy Chiang

Chicago-Kent Law Review

Few other groups spark as much controversy as Hamas. While it won Parliamentary elections in January of 2006, its militant tactics have earned it widespread condemnation from most of the international community. However, using international law alone will not convince Hamas to renounce violence because Hamas claims to derive its principles from Islamic law. This note explores and applies international and Islamic law to Hamas's tactics and concludes that they can both be used to convince Hamas to renounce violence and restart the peace process.

Unification Of Payments Law And The Problem Of Insolvency Risk In Payment Systems, James Steven Rogers

Chicago-Kent Law Review

The law of payment systems is currently quite fractionalized. Different legal regimes apply to different payment systems, although the differences among the systems are obscure to the ordinary user. This article considers some aspects of the question whether unification is feasible. The discussion begins with some general issues, such as whether it makes sense to frame the issue as whether payment systems should be "regulated," or whether all rules for different payment systems should be uniform. The discussion then turns to one specific issue: who should bear the risk of insolvency of payment system providers? Private law cannot eliminate the …

Duty Issues In The Ever-Changing World Of Payments Processing: Is It Time For New Rules?, Sarah Jane Hughes

Chicago-Kent Law Review

As payments systems proliferate and become increasingly dependent on the electronic transmission of data or images to the bank that represents the obligor, obligors have lost control over the systems of laws that govern their payments transactions. This article forecasts a trend away from the common law approaches of measuring the behaviors of payments intermediaries—depositary banks and payor banks as well as systems such as the automated clearing houses—by means of the concepts of "good faith" and "ordinary care," long staples of payments under the Uniform Commercial Code, in favor of brighter-line standards such as those that the National Automated …