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Articles 1 - 30 of 127
Full-Text Articles in Law
Haack On Legal Proof, Richard Wright
Haack On Legal Proof, Richard Wright
All Faculty Scholarship
In this paper I discuss Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding the standards of proof employed in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. At the end, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.
The Cost Of Obeying The Law?: The Seventh Circuit Rejects The Bona Fide Error Defense From A Debt Collector Who Followed The Then-Binding Law, Jun Qiu
Seventh Circuit Review
It is expected that people should follow the law, which includes the statutes themselves and the judicial rulings interpreting those statutes. However, if the binding judicial interpretation changes, should the parties be liable for their behavior following the old binding judicial interpretation of a federal statute at the time when it was still in effect? Or, should there be any defense that would allow the parties to shield themselves from liability for a good-faith reliance on the old binding judicial interpretation?
Stranded At Sea: The Seventh Circuit And The Rule 11 “Safe Harbor” Rule, Daniel Ristau
Stranded At Sea: The Seventh Circuit And The Rule 11 “Safe Harbor” Rule, Daniel Ristau
Seventh Circuit Review
When lawyers pursue frivolous claims, they invite sanctions. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that the pleadings and motions they submit are meritorious. Since 1993, attorneys have been required to serve opposing counsel with a motion—to fire a warning shot—when they intend to file for sanctions. This provides attorneys an opportunity to seek “safe harbor” and avoid sanctions by withdrawing or amending actions brought for an improper purpose.
Your Supervisor As Your Chattel: Broadening The Scope Of Negligent Hiring And Retention In Illinois, Philip F. Vieira
Your Supervisor As Your Chattel: Broadening The Scope Of Negligent Hiring And Retention In Illinois, Philip F. Vieira
Seventh Circuit Review
In Illinois, employers have a duty to act reasonably in hiring and retaining their employees. An employer who negligently hires or retains an employee may be liable for injuries caused by that employee even if the employee is acting outside the scope of employment. Of course, this doctrine has to have some limit. Otherwise, employers would be responsible for practically any injury committed by one of its employees, even if it is only tangentially related to the fact of employment. However, courts have struggled to define that outer limit. Particularly when faced with horrific injuries, courts may be tempted to …
Mirror, Mirror On The Wall, Are They Trainees And Not Employees At All? The Legality And "Economic Reality" Of Unpaid Internships, Beatriz Carrillo
Mirror, Mirror On The Wall, Are They Trainees And Not Employees At All? The Legality And "Economic Reality" Of Unpaid Internships, Beatriz Carrillo
Seventh Circuit Review
The number of unpaid internships has skyrocketed over the past years as employers seem to prefer those with experience in the field. “Experience” has become the currency that college students seek to open the door to future employment. Unpaid interns have become the modern-day equivalent of entry-level employees. However, they are not paid for the hours worked and lack the normal employment protections offered to employees, such as FLSA and Title VII protections. The court's interest recently has been sparked to define the roles of interns in the labor force and has started to shape intern’s legal protections. As a …
The “Animus” Briefs: Attacks On The Seventh Circuit’S Sound Analysis Of Transgender Bathroom Rights In Public Schools, Brennan B. Hutson
The “Animus” Briefs: Attacks On The Seventh Circuit’S Sound Analysis Of Transgender Bathroom Rights In Public Schools, Brennan B. Hutson
Seventh Circuit Review
You have probably heard about state legislatures floating the idea of “bathroom laws” that would prohibit transgendered individuals from using the bathroom of their gender identity in public places. Although no state has actually signed such legislation into law, the spirit of those anti-transgender laws has been carried out in smaller governmental entities: public schools. Unlike a hypothetical state law, which would be nearly impossible to enforce without state officials performing inspections of genitals, a school policy is truly enforceable and has real effects.
Outgrowing Its Usefulness: Seventh Circuit Limits The Application Of The Common Actor Inference In Title Vii Discrimination Cases, Michael G. Zolfo
Outgrowing Its Usefulness: Seventh Circuit Limits The Application Of The Common Actor Inference In Title Vii Discrimination Cases, Michael G. Zolfo
Seventh Circuit Review
Can a person harbor discriminatory views toward protected minority groups, yet still hire a member of that group as an employee? Under Title VII jurisprudence, the “common actor inference” holds that if the same supervisor hires and fires an employee in a short time period, that supervisor likely did not have a discriminatory reason for the employment decision. The common actor inference has been accepted and used across all U.S. Circuit Courts of Appeal, but was recently criticized and limited by the Seventh Circuit.
Baby Got (A Broken) Back, But No Remedy: The Seventh Circuit’S Refusal To Provide A Remedy For Eighth Amendment Violations, Timothy Lavino
Baby Got (A Broken) Back, But No Remedy: The Seventh Circuit’S Refusal To Provide A Remedy For Eighth Amendment Violations, Timothy Lavino
Seventh Circuit Review
Since 1871, individuals have been able to bring a cause of action against state officials who violate the individual’s constitutional rights. However, it wasn’t until the 1965 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the U.S. Supreme Court created a cause of action for individuals whose Fourth Amendment rights were violated by federal officials. Since 1965, this cause of action, known as a Bivens action, has been extended to violations of the Fifth and Eighth Amendments.
Neither Cruel Nor Unusual: An Hour And A Half Delay In Treatment Can Now Amount To Deliberate Indifference, Monica J. Raven
Neither Cruel Nor Unusual: An Hour And A Half Delay In Treatment Can Now Amount To Deliberate Indifference, Monica J. Raven
Seventh Circuit Review
The Eighth Amendment of the U.S. Constitution proscribes cruel and unusual punishment. To state a cognizable claim, a plaintiff must allege that a prison official or medical professional was deliberately indifferent to his or her objectively serious medical need. In Lewis v. McLean, the Seventh Circuit analyzed whether a nurse and prison official’s hour and a half delay in treatment created a triable issue as to whether they acted with deliberate indifference. The plaintiff alleged that the defendants showed deliberate indifference to his severe back pain by delaying his access to medical care. The defendants, on the other hand, …
Between Scylla And Charybdis: Ezell V. City Of Chicago (Ezell Ii) And How The Seventh Circuit Continues To Narrow Chicago’S Constitutional Path Forward On Gun Control, Christopher Gerardi
Between Scylla And Charybdis: Ezell V. City Of Chicago (Ezell Ii) And How The Seventh Circuit Continues To Narrow Chicago’S Constitutional Path Forward On Gun Control, Christopher Gerardi
Seventh Circuit Review
It has been less than a decade since the Supreme Court reset the landscape of gun rights by recognizing, for the first time, that the Second Amendment protects an individual’s right to keep and bear arms unconnected with any militia service. The Court was notably silent as to which standard of review lower courts should apply to the inevitable wave of Second Amendment challenges to federal, state, and local gun control legislation. In the absence of guidance from the Supreme Court, the majority of the Federal Circuit Courts of Appeals have adopted a two-step means-end test similar in many respects …
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher Schmidt
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher Schmidt
All Faculty Scholarship
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference …
Vol. 35, No. 4, Roxana M. Underwood
Vol. 35, No. 4, Roxana M. Underwood
The Illinois Public Employee Relations Report
Managing Public Employee Speech in the Age of Social Media – Instituting Policies Regulating Public Employee Conduct While Balancing Access to the “Democratic Forums of the Internet”, by Roxana M. Underwood
Recent Developments
Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott
Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott
Chicago-Kent Law Review
The past twenty-five years have been marked by major developments in consumer insolvency systems around the world. The threshold challenge for comparative scholars is to keep up with the changes occurring in individual countries, as a necessary—but preliminary—step toward broader comparisons of the historical, social, and institutional forces in consumer bankruptcy. In order for deeper work to take place, though, the field needs consensus on what factors are most useful to analyze. Moreover, the dynamic environment of consumer insolvency requires a framework for analysis that is flexible and adaptable enough to provide insights notwithstanding the rapid changes in the field. …
The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari
The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari
Chicago-Kent Law Review
The enactments of the UNCITRAL Model Law on Cross-Border Insolvency and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of actions overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures.
This Article focuses on the Anglo/American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective, and secondary notion in light of two case studies. It suggests that in the context of cross-border, …
Preventing Drug-Related Deaths At Music Festivals: Why The "Rave" Act Should Be Amended To Provide An Exception For Harm Reduction Services, Robin Mohr
Chicago-Kent Law Review
No abstract provided.
A Canadian Lens On Third Party Litigation Funding In The American Bankruptcy Context, Stephanie Ben-Ishai, Emily Uza
A Canadian Lens On Third Party Litigation Funding In The American Bankruptcy Context, Stephanie Ben-Ishai, Emily Uza
Chicago-Kent Law Review
This Article offers two major recommendations to expand the use of third party litigation funding (“TPLF”) into the U.S. insolvency context. As seen in the Canadian context, courts have accepted the use of litigation funding agreements fitting within certain parameters. If U.S. courts follow suit, friction against the implementation of TPLF can be mitigated. Alternatively, regulation may occur through legislative and regulatory models to govern and set out precisely what types of arrangements are permitted. Involving entities such as the SEC may expedite the acceptance of TPLF, but special attention is necessary not to intermingle notions of fiduciaries into the …
When Borders Dissolve, Laura N. Coordes
When Borders Dissolve, Laura N. Coordes
Chicago-Kent Law Review
Scholars have long sought to apply principles from U.S. bankruptcy law to sovereign debt restructurings. Chapter 9 of the U.S. Bankruptcy Code, used to adjust the debts of municipalities, has been a particular source of inspiration, and several proposals currently exist to adapt chapter 9 to address the challenges of sovereign debt restructuring.
The difficulties of applying chapter 9 in practice, however, have demonstrated the limitations of a one-size-fits-all solution to municipal distress. Similarly, attempts to adapt chapter 9 to apply uniformly to a broad range of sovereign states may be ineffective. A recurring problem lies in the fact that …
Modularity In Cross-Border Insolvency, Andrew B. Dawson
Modularity In Cross-Border Insolvency, Andrew B. Dawson
Chicago-Kent Law Review
This Article proposes a framework for thinking about the design structure of the Model Law on Cross-Border Insolvency. The Model Law has been successful by many metrics; however, it has faced various implementation challenges. As leading scholar Professor Jay Westbrook has noted, thinking about these problems requires thinking about the Model Law as a system. To understand the system, it is necessary to understand its architecture, and I argue that this architecture is best understood as reflecting a modular design structure, i.e., one that divides complex systems into a hierarchical system of self-contained components. Modularity has provided insights into other …
The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martínez
The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martínez
Chicago-Kent Law Review
Most insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm, but they do not have any control over the debtor’s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced by …
Infinite Jest: The Otiose Quest For Completeness In Validating Insolvency Judgments, Bruce A. Markell
Infinite Jest: The Otiose Quest For Completeness In Validating Insolvency Judgments, Bruce A. Markell
Chicago-Kent Law Review
Universalism in cross-border bankruptcies strives to reduce waste, and harmonize restructuring and recoveries. Universalism’s avatar is UNCITRAL’s 1997 Model Law on Cross-Border Insolvencies (Model Law). Underlying the Model Law, however, is an implicit assumption that court orders entered in the proceeding where the debtor’s center of main interests is located will be respected in all other states in which the debtor has assets or operations. That assumption may have been incorrect, as shown by cases such as the United Kingdom’s Rubin v. Eurofinance, S.A.
This Article looks at UNCITRAL’s reaction to Rubin: its new Model Law on Recognition …
Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson
Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson
Chicago-Kent Law Review
Courts in England and the United States have traditionally adopted different approaches to the question of valuation in debt restructuring cases. In England, courts have tended to determine whether to approve the allocation of equity in a debt restructuring by reference to the amounts creditors would have received if no debt restructuring had been agreed. The company has typically argued that if no debt restructuring had been agreed either the business or the assets would have been sold. Typically, some evidence of exposure of the business and assets to the market will be submitted to identify the value which would …
Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo
Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo
Chicago-Kent Law Review
Over the last two decades, in many jurisdictions great emphasis has been placed on directors’ fiduciary duties when a corporation is insolvent or in the amorphous “zone of insolvency”; notably, to investigate whether the directors should continue to promote the best interests of the corporation for the benefits of its shareholders, or whether their duties shift to creditors.
The resolution of this ubiquitous issue will help to answer the following questions: Do creditors have standing to pursue claims for breach of fiduciary duties in the insolvency scenario? And, if they do, is it direct or derivative standing?
This Article will …
The Question For Another Day: Hooker V. Illinois State Board Of Elections And Its Effect On The Vitality Of Citizen Ballot Initiatives And Redistricting Reform In Illinois, Thomas Q. Ford
Chicago-Kent Law Review
Like most states, Illinois is no stranger to political gerrymandering. Since 2010, redistricting reformers have made repeated efforts to change the way Illinois's political maps are drawn, essentially by minimizing or eliminating the role lawmakers play in the process. Polls show the vast majority of Illinoisans support such a change. Reformers have chosen Illinois's citizen ballot initiative as their vehicle to amend the redistricting process, but every proposed initiative has been struck down in court before reaching voters. Most recently, the Illinois Supreme Court rejected a proposed initiative in Hooker v. Illinois State Board of Elections. This Note argues …
The Changing Landscape Of 19th Century Courts, Nancy Marder
The Changing Landscape Of 19th Century Courts, Nancy Marder
All Faculty Scholarship
Book Review of:Amalia D. Kessler. Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877. New Haven: Yale University Press, 2017. 449 pp. Illustrations, appendix, notes, bibliography, and index. $35.00.
Building A Regime Of Restrictive Immigration Laws, 1840-1945, Felice Batlan
Building A Regime Of Restrictive Immigration Laws, 1840-1945, Felice Batlan
All Faculty Scholarship
H-Pad is happy to announce the release of its sixth broadside. In “Building a Regime of Restrictive Immigration Laws, 1840-1945,” Felice Batlan traces a century of U.S. government laws, policies, and attitudes regarding immigration. The broadside explores how ideas about race, class, religion, and the Other repeatedly led to laws restricting the immigration of those who members of Congress, the President, and the U.S. public considered inferior and/or a threat.
Commitment Through Fear: Mandatory Jury Trials And Substantive Due Process Violations In The Civil Commitment Of Sex Offenders In Illinois, Michael Zolfo
Chicago-Kent Law Review
In Illinois, a person deemed a Sexually Violent Person (“SVP”) in a civil trial can be detained indefinitely in treatment facilities that functionally serve as prisons. SVPs are not afforded the right to waive a jury trial, a right that criminal defendants enjoy. This results in SVPs facing juries that treat sex offenders as monsters or sub-humans, due to often sensationalistic media coverage and the use of sex offenders as boogeymen in political campaigns. The lack of a jury trial waiver results in more individuals being deemed SVPs, depriving many of their liberty without the due process of law, a …
Cohabitation In Illinois: The Need For Legislative Intervention, Stefanie L. Ferrari
Cohabitation In Illinois: The Need For Legislative Intervention, Stefanie L. Ferrari
Chicago-Kent Law Review
No abstract provided.
Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon
Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon
Chicago-Kent Law Review
This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work of the regime politics …
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
Chicago-Kent Law Review
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …
The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro
The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro
Chicago-Kent Law Review
No abstract provided.