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Chicago-Kent College of Law

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Articles 1 - 30 of 119

Full-Text Articles in Law

A Private Right Of Action For Informed Consent In Research, Valerie Gutmann Koch Jan 2015

A Private Right Of Action For Informed Consent In Research, Valerie Gutmann Koch

Valerie Gutmann Koch

No abstract provided.


A Policy In Flux: New York State’S Evolving Approach To Human Subjects Research Involving Individuals Who Lack Consent Capacity (Forthcoming), Valerie Gutmann Koch Jan 2014

A Policy In Flux: New York State’S Evolving Approach To Human Subjects Research Involving Individuals Who Lack Consent Capacity (Forthcoming), Valerie Gutmann Koch

Valerie Gutmann Koch

No abstract provided.


“Of Vital Importance”: The New York State Task Force On Life And The Law’S Report And Recommendations For Research With Human Subjects Who Lack Consent Capacity (With Susie A. Han), Valerie Gutmann Koch Jan 2014

“Of Vital Importance”: The New York State Task Force On Life And The Law’S Report And Recommendations For Research With Human Subjects Who Lack Consent Capacity (With Susie A. Han), Valerie Gutmann Koch

Valerie Gutmann Koch

No abstract provided.


Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair Aug 2013

Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair

Sylvia B. St. Clair

Ms. St. Clair explores the use of oral histories to prove cultural affiliation and examines how the laws of evidence must be adapted in order to accommodate this type of evidence. In cases involving the repatriation of Native American human remains, proving cultural affiliation becomes especially problematic when traditional evidence is scarce and tribal claimants rely on oral histories to prove affiliation. This type of evidence is subject to heavy skepticism, consistently challenged by science and technological advances, and examination of the court’s treatment of cases over the last decade has left confusion on the applicable standard. In face of …


Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala Mar 2013

Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala

Michal Pekala

No abstract provided.


Chicago's "Great Boodle Trial", Todd Haugh Jan 2013

Chicago's "Great Boodle Trial", Todd Haugh

Todd Haugh

No abstract provided.


Sentencing The Why Of White Collar Crime, Todd Haugh Jan 2013

Sentencing The Why Of White Collar Crime, Todd Haugh

Todd Haugh

No abstract provided.


Unique Proposals For Limiting Legal Liability And Encouraging Adherence To Ventilator Allocation Guidelines In An Influenza Pandemic, Valerie Gutmann Koch Jan 2013

Unique Proposals For Limiting Legal Liability And Encouraging Adherence To Ventilator Allocation Guidelines In An Influenza Pandemic, Valerie Gutmann Koch

Valerie Gutmann Koch

No abstract provided.


Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala Dec 2012

Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala

Michal Pekala

In this essay, I consider the issue of the protection of online works in Poland, focusing in particular on the doctrine of private fair use in Polish copyright law. Private fair use permits in certain circumstances the use of works of others without the authors’ consent.. Given the nature of private fair use, it is essential that it function consistent with the purpose of copyright protection. Since the Polish Copyright Act was enacted in 1994, private fair use has lost its ability to serve as an appropriate exception to the Polish copyright laws with respect to online works. Specifically, certain …


Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani Jan 2012

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

Vinay Harpalani

This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea …


Can The Ceo Learn From The Condemned? The Application Of Capital Mitigation Strategies To White Collar Cases, Todd Haugh Jan 2012

Can The Ceo Learn From The Condemned? The Application Of Capital Mitigation Strategies To White Collar Cases, Todd Haugh

Todd Haugh

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions—mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, …


Pgtandme: Social Networking-Based Genetic Testing And The Evolving Research Model, Valerie Gutmann Koch Jan 2012

Pgtandme: Social Networking-Based Genetic Testing And The Evolving Research Model, Valerie Gutmann Koch

Valerie Gutmann Koch

The opportunity to use extensive genetic data, personal information, and family medical history for research purposes may be naturally appealing to the personal genetic testing (PGT) industry, which is already coupling its direct-to-consumer (DTC) products with social networking technologies, as well as to potential industry or institutional partners. This article evaluates the transformation in research that the hybrid of PGT and social networking will bring about, and – highlighting the challenges associated with a new paradigm of “patient-driven” genomic research – focuses on the consequences of shifting the structure, locus, timing, and scope of research through genetic crowd-sourcing. This article …


Incentivizing The Utilization Of Pharmacogenomics In Drug Development, Valerie Gutmann Koch Jan 2012

Incentivizing The Utilization Of Pharmacogenomics In Drug Development, Valerie Gutmann Koch

Valerie Gutmann Koch

Pharmacogenomics, the study and development of compounds according to how an individual’s genes affects the body’s response to drugs, holds enormous promise for increasing the safety and efficiency of drug development while decreasing adverse reactions and the trial-and-error nature of drug prescription. However, pharmacogenomics may not be the panacea for all development and prescription problems. This article explores some of the obstacles to pharmacogenomic advancement including industry reluctance to pursue research because of potentially prohibitive costs associated with developing products and legal liability concerns. The implications pharmacogenomics has for drug research and development as well as various areas of law …


“Get Real” Giving Writing Assignments, Todd Haugh Jan 2011

“Get Real” Giving Writing Assignments, Todd Haugh

Todd Haugh

No abstract provided.


Note, Maintaining Educational Adequacy In Times Of Recession: Judicial Review Of State Education Budget Cuts, Vinay Harpalani Jan 2010

Note, Maintaining Educational Adequacy In Times Of Recession: Judicial Review Of State Education Budget Cuts, Vinay Harpalani

Vinay Harpalani

This Note examines judicial review and oversight of state educational adequacy remedies in light of education budget cuts proposed during the recent recession. Educational adequacy litigation has been relatively successful in establishing children’s affirmative right to education under state constitutions, but due to separation of powers concerns, most state courts have been quite deferential to legislatures in reviewing remedies for constitutional violations. This leaves many schools underfunded and under-resourced in spite of successful adequacy litigation—a problem that is aggravated during times of recession, when many states face pressure to cut education budgets. This Note examines these issues using functional separation …


Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh Jan 2010

Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh

Todd Haugh

No abstract provided.


All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody Jan 2010

All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody

Evelyn Brody

Attention from the media notwithstanding, the nonprofit sector continues to achieve remarkable success in state supreme courts and statehouses in defending property-tax exemptions. But budget pressures remain. While the intermediate use of “payments in lieu of taxes” has not yet become a systematic compromise solution, PILOTs are attracting growing interest from local taxing jurisdictions. This Article highlights three issues— who decides the parameters of exemption, legislatures or courts; what are the specific factors and vulnerable subsectors; and how exemption is granted or withheld in practice—and concludes with several PILOT case studies. The Appendix sets forth a fifty-one-jurisdiction review of state …


Respecting Foundation And Charity Autonomy: How Public Is Private Philanthropy? (Symposium) (With J. Tyler), Evelyn Brody Jan 2010

Respecting Foundation And Charity Autonomy: How Public Is Private Philanthropy? (Symposium) (With J. Tyler), Evelyn Brody

Evelyn Brody

Recent years have seen a disturbing increase in legal proposals by the public and government officials to interfere with the governance, missions, strategies, and decision-making of foundations and other charities. Underlying much of these debates is the premise – stated or merely presumed – that foundation and charity assets are “public money” and that such entities therefore are subject to various public mandates or standards about their structure, operations, and policies. The authors’ experiences and research reveal three “myths” that, singly or collectively, underlie claims that charitable assets are public money. The first myth conceives of charities as shadow governments …


Changing Expectations For Board Oversight Of Healthcare Quality: The Emerging Paradigm (With Tracy E. Miller), Valerie Gutmann Koch Jan 2009

Changing Expectations For Board Oversight Of Healthcare Quality: The Emerging Paradigm (With Tracy E. Miller), Valerie Gutmann Koch

Valerie Gutmann Koch

Within healthcare institutions, leadership is an essential driver of expectations, performance, and culture. Yet boards of directors traditionally played a limited role in overseeing healthcare quality, providing final approval of credentialing decisions but deferring to the medical staff to set standards for the institution. Case law and standards provide little guidance for board performance in verseeing quality of care. Recent developments — the availability of comparative quality data, public reporting, and financial incentives for higher quality — have transformed expectations for board oversight. Enforcement of fraud and abuse laws based on poor quality of care, as well as federal standards …


Conflicts Of Interest In Clinical Trial Recruitment & Enrollment: A Call For Increased Oversight, Valerie Gutmann Koch Jan 2009

Conflicts Of Interest In Clinical Trial Recruitment & Enrollment: A Call For Increased Oversight, Valerie Gutmann Koch

Valerie Gutmann Koch

This White Paper makes several policy recommendations to eliminate or manage the conflicts of interest that arise pursuant to the compensation arrangements between investigators and their institutions with drug and medical device manufacturers as they affect the recruitment and enrollment of human research subjects in clinical trials. The paper seeks to accomplish overall financial neutrality as between treatment and research, so that physicians' decisions regarding inclusion of patients in clinical trials is unaffected by their own financial interests.


Lewis & Clark Law School Ninth Distinguished Ip Lecture: Developing Defenses In Trademark Law, Graeme B. Dinwoodie Jan 2009

Lewis & Clark Law School Ninth Distinguished Ip Lecture: Developing Defenses In Trademark Law, Graeme B. Dinwoodie

Graeme B. Dinwoodie

Trademark law contains important limits that place a range of third party conduct beyond the control of the trademark owner. However, I suggest that trademark law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of trademark law and thus support a prima facie cause of action by the trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and …


Perpetual Property, Sarah K. Harding Jan 2009

Perpetual Property, Sarah K. Harding

Sarah K. Harding

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, …


Bionormativity And The Construction Of Parenthood, Katharine K. Baker Jun 2008

Bionormativity And The Construction Of Parenthood, Katharine K. Baker

Katharine K. Baker

This piece explores the relationship between legal and biological parenthood. It examines how neither history, nor evolutionary biology nor moral philosophy dictate a legal regime in which parenthood must be based on biological connection, but that attraction to a biological (or “bionormative”) regime remains strong. In explaining why, it suggests that much of what attracts people to bionormativity is not biology itself, but the way in which a biological regime constructs parenthood as a private, exclusive and binary enterprise. It is these ancillary qualities of bionormativity that people may care the most about. Today, a variety of forces put pressure …


Accessing Government: How Difficult Is It? Citizen Advocacy Center 2008) (With T. Pastika)., Natalie Brouwer Potts Jan 2008

Accessing Government: How Difficult Is It? Citizen Advocacy Center 2008) (With T. Pastika)., Natalie Brouwer Potts

Natalie Brouwer Potts

No abstract provided.


Hard Or Soft Pluralism?: Positive, Normative, And Institutional Considerations Of States’ Extraterritorial Powers, Mark D. Rosen Jul 2007

Hard Or Soft Pluralism?: Positive, Normative, And Institutional Considerations Of States’ Extraterritorial Powers, Mark D. Rosen

Mark D. Rosen

This article is an invited commentary to an extremely thought-provoking address delivered by Richard H. Fallon, Jr., that addressed unexpected consequences that would follow a reversal of Roe v. Wade. The article addresses the question of states’ extraterritorial powers, and asks whether Mary, a citizen of a state that prohibited abortions (let’s say Utah), could be barred from obtaining abortions in a state (let’s say California) in which abortions were legal. The Article makes seven points in relation to this question. Its observations are relevant not only to the unlikely event of Roe’s demise, but also to a non-trivial class …


The Problem With Unpaid Work, Katharine K. Baker Jun 2007

The Problem With Unpaid Work, Katharine K. Baker

Katharine K. Baker

This article examines the problems with a social norm that assumes women should shoulder a disproportionate amount of unpaid family work. It evaluates the most recent empirical data which suggests that women continue to do substantially more unpaid work than men, and men continue to do substantially more paid work than women. It then briefly reviews two standard explanations for where this gendered division of work may come from, biological inclination and/or systems of male dominance. It suggests that neither of these traditional explanations have given adequate consideration to the normative question begged by the extant division of labor. Is …


Lessons From The Trademark Use Debate (With M. Janis), Graeme B. Dinwoodie May 2007

Lessons From The Trademark Use Debate (With M. Janis), Graeme B. Dinwoodie

Graeme B. Dinwoodie

In their response to our article Confusion Over Use: Contextualism in Trademark Law, Professors Dogan and Lemley discard more all-encompassing versions of the trademark use requirement. Instead, they seek to delineate and defend a “more surgical form” of trademark use doctrine. In this reply, we demonstrate that the language of the Lanham Act does not impose a trademark use requirement even when that requirement is defined “surgically” and sections 32 and 43(a) are read “fluidly,” as Dogan and Lemley suggest. Moreover, their interpretation still renders section 33(b)(4) redundant and unduly limits appropriate common law development of trademark law. We also …


Foreign And International Influences On National Copyright Policy: A Surprisingly Rich Picture (F. Mcmillan, Ed.), Graeme B. Dinwoodie May 2007

Foreign And International Influences On National Copyright Policy: A Surprisingly Rich Picture (F. Mcmillan, Ed.), Graeme B. Dinwoodie

Graeme B. Dinwoodie

National copyright policy, traditionally reflective of domestic cultural and economic priorities, is increasingly shaped by foreign and international influences. In this chapter, I sketch some of the changes in copyright lawmaking that have given rise to this phenomenon. Especially when viewed in historical context, foreign and international influence on the development of copyright law is now quite pervasive – albeit in ways, and effected through a number of institutions, that might appear surprising.


What Linguistics Can Do For Trademark Law, Graeme B. Dinwoodie May 2007

What Linguistics Can Do For Trademark Law, Graeme B. Dinwoodie

Graeme B. Dinwoodie

This contribution to an inter-disciplinary book on Trademarks and Brands responds to the work of Alan Durant, a linguist who (in his chapter of the book) provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. The Response explains why linguistics should matter to trademark law, but also why trademark law might on occasion ignore the precise reality of consumer understanding as might be provided by linguistics. I suggest that, while trademark …


The International Intellectual Property System: Treaties, Norms, National Courts And Private Ordering, Graeme B. Dinwoodie May 2007

The International Intellectual Property System: Treaties, Norms, National Courts And Private Ordering, Graeme B. Dinwoodie

Graeme B. Dinwoodie

Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account …