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Loyola University Chicago, School of Law

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Articles 1 - 30 of 513

Full-Text Articles in Law

The Power Of Imagination: Diversity And The Education Of Lawyers And Judges, Barry Sullivan Jan 2018

The Power Of Imagination: Diversity And The Education Of Lawyers And Judges, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.


Choosing Medical Malpractice, Nadia N. Sawicki Jan 2018

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses ...


Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell Jan 2018

Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell

Faculty Publications & Other Works

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff's claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of ...


Interrogation Parity, Stephen Rushin, Kate Levine Jan 2018

Interrogation Parity, Stephen Rushin, Kate Levine

Faculty Publications & Other Works

This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create ...


Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller Jan 2018

Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller

Faculty Publications & Other Works

Trade associations can play a procompetitive role in an economy but, as an association of actual and potential competitors, can also raise important competition law issues that must be addressed carefully by legal counsel. This Issue Paper presents a hypothetical problem that illustrates many of the issues that counsel can confront in representing a trade association, its members, or company executives. The Issue Paper raises many of the issues from a United States' perspective with occasional comparative examples from other jurisdictions. Carefully consider how your jurisdiction would, and should, address these all too real issues. In thinking about the ...


Categorizing Student Speech, Alexander Tsesis Jan 2018

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.


Prophesy, Public Theology, And Questions Of Justice: Some Modest Reflections, Barry Sullivan Jan 2018

Prophesy, Public Theology, And Questions Of Justice: Some Modest Reflections, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.


Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes?, Cynthia M. Ho Jan 2018

Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes?, Cynthia M. Ho

Faculty Publications & Other Works

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed ...


Assessing Kenya’S Cooperative Model Of Devolution: A Situation-Specific Analysis, James T. Gathii, Harrison Mbori Otieno Jan 2018

Assessing Kenya’S Cooperative Model Of Devolution: A Situation-Specific Analysis, James T. Gathii, Harrison Mbori Otieno

Faculty Publications & Other Works

Kenya’s form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution’s relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in ...


Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn Jan 2018

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

Faculty Publications & Other Works

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S ...


Would Hamsterdam Work - Drug Depenalization In The Wire And In Real Life, John Bronsteen Jan 2018

Would Hamsterdam Work - Drug Depenalization In The Wire And In Real Life, John Bronsteen

Faculty Publications & Other Works

The television show The Wire depicts a plan called “Hamsterdam” in which police let people sell drugs in isolated places, and only those places, without fear of arrest. Based on limited but decent empirical evidence, we can make educated guesses about what would happen if that were tried in real life. Indeed, Swiss police tried something remarkably similar in the 1980s. More generally, the results of various forms of drug legalization, depenalization, and decriminalization in Europe--such as in Portugal, which has transferred the state's method of dealing with drug use (including heroin and cocaine) from the criminal justice system ...


On The Permanence Of Racial Injustice And The Possibility Of Deracialization, Steven A. Ramirez, Neil G. Williams Jan 2018

On The Permanence Of Racial Injustice And The Possibility Of Deracialization, Steven A. Ramirez, Neil G. Williams

Faculty Publications & Other Works

No abstract provided.


Echoes Of Slavery Ii: How Slavery's Legacy Distorts Democracy, Juan F. Perea Jan 2018

Echoes Of Slavery Ii: How Slavery's Legacy Distorts Democracy, Juan F. Perea

Faculty Publications & Other Works

No abstract provided.


Regulatory Silence At The Fda, Jordan Paradise Jan 2018

Regulatory Silence At The Fda, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.


From Texas Gulf Sulphur To Laudato Si': Mining Equitable Principles From Insider Trading Law, Michael Kaufman Jan 2018

From Texas Gulf Sulphur To Laudato Si': Mining Equitable Principles From Insider Trading Law, Michael Kaufman

Faculty Publications & Other Works

In SEC v. Texas Gulf Sulphur, the Second Circuit declared that all investors trading on impersonal exchanges should have equal access to material information, and therefore anyone who possesses material inside information must either turn it over to the investing public or not trade. The broad reach of that insider trading prohibition sent shock waves throughout the financial markets and encountered significant judicial resistance from the Supreme Court.

Although the Supreme Court initially rejected the insider trading prohibition announced in Texas Gulf Sulphur, the fundamental equitable trading principles underlying that decision have endured. This article shows that TGS was more ...


Police Executive Opinions Of Legal Regulation, Stephen Rushin, Roger Michalski Jan 2018

Police Executive Opinions Of Legal Regulation, Stephen Rushin, Roger Michalski

Faculty Publications & Other Works

By conducting a national survey, this Article empirically assesses how American police leaders perceive external legal regulation.

At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community.

These complaints underscore an uncomfortable but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal ...


How The United States Supreme Court Diminished Constitutional Protections Of The Right To Vote And What Congress Can Do About It, Henry Rose Jan 2018

How The United States Supreme Court Diminished Constitutional Protections Of The Right To Vote And What Congress Can Do About It, Henry Rose

Faculty Publications & Other Works

No abstract provided.


Exploring Precision Fda, An Online Platform For Crowdsourcing Genomics, Jordan Paradise Jan 2018

Exploring Precision Fda, An Online Platform For Crowdsourcing Genomics, Jordan Paradise

Faculty Publications & Other Works

The U.S. Food and Drug Administration has created an online platform for the next generation sequencing community, enabling users to evaluate biomarker information and share resources. This article examines this online platform and offers several observations about potential legal and regulatory implications.


A Century Of Latino/Hispanic Graduates, Thomas M. Haney Jan 2017

A Century Of Latino/Hispanic Graduates, Thomas M. Haney

Faculty Publications & Other Works

No abstract provided.


Health Care Is Not A Typical Consumer Good And We Should Not Rely On Incentivized Consumers To Allocate It, Lawrence E. Singer Jan 2017

Health Care Is Not A Typical Consumer Good And We Should Not Rely On Incentivized Consumers To Allocate It, Lawrence E. Singer

Faculty Publications & Other Works

No abstract provided.


Police Union Contracts, Stephen Rushin Jan 2017

Police Union Contracts, Stephen Rushin

Faculty Publications & Other Works

This Article empirically demonstrates that police departments' internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.

Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor ...


State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett Jan 2017

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Faculty Publications & Other Works

No abstract provided.


How The Supreme Court's Misconstruction Of The Faa Has Affected Consumers, Margaret L. Moses Jan 2017

How The Supreme Court's Misconstruction Of The Faa Has Affected Consumers, Margaret L. Moses

Faculty Publications & Other Works

Neither the drafters of the Federal Arbitration Act nor the Congress that adopted it intended for it to cover consumers or workers or displace state jurisdiction or state substantive law. The FAA was simply intended to provide a means for resolving disputes among commercial entities that might voluntarily choose to forego their rights to have their disputes settled in court, in favor of what they deemed to be a simpler and more efficient means of dispute resolution. That point, which is entirely beyond dispute, has been lost on the Supreme Court. In a series of cases over the past fifty ...


Social Justice And The American Law School Today: Since We Are Made For Love, Michael J. Kaufman Jan 2017

Social Justice And The American Law School Today: Since We Are Made For Love, Michael J. Kaufman

Faculty Publications & Other Works

No abstract provided.


Let Prophets Be (Non) Profits, Samuel D. Brunson, David Herzig Jan 2017

Let Prophets Be (Non) Profits, Samuel D. Brunson, David Herzig

Faculty Publications & Other Works

No abstract provided.


‘We Can't Tolerate That Behavior In This School!’: The Consequences Of Excluding Children With Behavioral Health Conditions And The Limits Of The Law, Kate Mitchell Jan 2017

‘We Can't Tolerate That Behavior In This School!’: The Consequences Of Excluding Children With Behavioral Health Conditions And The Limits Of The Law, Kate Mitchell

Faculty Publications & Other Works

The disciplinary exclusion of children with behavioral health conditions is rampant in public schools in the United States. The practice of suspending and expelling students with behavioral challenges, caused in part by a lack of understanding of the causes of children's behavioral challenges and failures by schools to implement appropriate behavioral supports and interventions, results in the isolation and segregation of some of the most vulnerable students. Research has clearly established that these exclusionary practices are ineffective both in addressing behavioral challenges and in keeping schools safer. In fact, disciplinary removals result in lost educational opportunities, increased dropout risk ...


Regime Shifting Of Ip Law Making And Enforcement From The Wto To The International Investment Regime, James T. Gathii, Cynthia M. Ho Jan 2017

Regime Shifting Of Ip Law Making And Enforcement From The Wto To The International Investment Regime, James T. Gathii, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.


Henry J. Richardson Iii: The Father Of Black Traditions Of International Law, James T. Gathii Jan 2017

Henry J. Richardson Iii: The Father Of Black Traditions Of International Law, James T. Gathii

Faculty Publications & Other Works

No abstract provided.


A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David Herzig Jan 2017

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David Herzig

Faculty Publications & Other Works

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of ...


How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller Jan 2017

How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.