Law Commons^™

Open Markets, Competitive Democracy, And Transparent And Reliable Legal Systems: The Three Legs Of Development, James R. Jones

Chicago-Kent Law Review

In the 1990s, reform swept through Latin America. Open markets replaced closed economies. Real democracy replaced one-party rule and rigged elections. For about half of the region's population, economic and political conditions improved—yet the gap between the rich and poor widened. The poor half received little or no tangible benefits from these economic and democratic reforms. This article argues that the most difficult and probably most important reform remains to be accomplished: the reform of the legal and regulatory systems throughout Latin America. Until that happens, dreams of first-world recognition and respectability will elude Latin nations.

Industrial And Competition Policies In Mexico, Eduardo Perez Motta

Chicago-Kent Law Review

Until the 1980s, the Mexican economy was closed and strongly directed and controlled by the central government. However, starting with the second half of this decade and continuing into the 1990s, a marked change in industrial policy sought to create conditions that would open the economy and foster competition and economic efficiency. This process was undertaken by implementing a first generation of reforms, which included policies designed to attain macroeconomic stability, trade openness, and a modernization of the regulatory framework. A second generation of reforms included the application of horizontal instruments, like standardization and metrology; the passing of new laws, …

Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire A. Hill

Chicago-Kent Law Review

Latin American contract documentation used to be quite short, as is typical in civil law countries. Increasingly, it resembles U.S. contract documentation: long, detailed, and full of boilerplate. This commentary discusses this development, and considers what effect it will have on contracting practice in Latin America; it also considers some broader implications of international convergence in contracting practices.

I argue that the explanation can't be that U.S. contracting practices are superior. That explanation doesn't even work in the U.S., where parties and institutions are geared up to use U.S. practices and documentation. Indeed, most of the virtues of U.S.-style contracting …

Uncertainty And Loss In The Free Speech Rights Of Public Employees Under Garcetti V. Ceballos, Sarah F. Suma

Chicago-Kent Law Review

Resolving a circuit split, the Supreme Court declared in Garcetti v. Ceballos that the First Amendment does not protect speech made pursuant to a public employee's work duties, regardless of whether the speech relates to a matter of public concern or the government's restrictions are justifiable. This article argues that a bright line rule eliminating First Amendment protection for job-duty speech is inconsistent with the theories underlying free speech protection. Further, this article explores practical drawbacks to Garcetti's bright-line rule, including inconsistent judicial determination of the scope of job duties, a disincentive to report government abuse through one's chain-of-command, …

To Disclose Or Not To Disclose: Duty Of Candor Obligations Of The United States And Foreign Patent Offices, Gina M. Bicknell

Chicago-Kent Law Review

Many patent offices around the world have rigorous prior art disclosure requirements. U.S. patent applicants not only must meet each individual country's criteria for disclosure, but also must contend with allegations of inequitable conduct from patent infringers which may render their patents unenforceable. This article argues that the new prior art disclosure rules promulgated by the USPTO unfairly shift the burden of examining patent applications onto patent applicants, and create a situation ripe for allegations of inequitable conduct. This article also examines how other countries handle disclosure obligations, and recommends several alternative systems that would meet the USPTO's objectives of …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Introduction To Law And Economic Development In Latin America: A Comparative Approach To Legal Reform, Thomas H. Hill

Chicago-Kent Law Review

No abstract provided.

Latin American Competition Policy: From Nirvana Antitrust Policy To Reality-Based Institutional Competition Building, Ignacio De Leon

Chicago-Kent Law Review

The inception of antitrust policy in Latin America is marred with misconceptions about the role of this policy. The seemingly pro-competitive goals declared under the law collide with the pursuit of welfare efficiency goals that could impair the natural outcomes of unfettered market forces. This article argues that the inherent contradiction between the stated goals of antitrust policy and its practical effects ultimately rests on the lack of analytical relevance attached to the institutional milieu within which antitrust policy is to produce its effects. Institutional connections are necessary to convey relevant information across the system; without these, the market would …

The Investment Climate, Competition Policy, And Economic Development In Latin America, R. Shyam Khemani, Ana Carrasco-Martin

Chicago-Kent Law Review

The merits of fostering effective competition in the economy to encourage economic efficiency, consumer welfare, productivity, innovation, and attract investment have been increasingly and widely recognized by governments around the world. Relative to other regions, developing countries in Latin America have been at the forefront in adopting pro-competition measures such as deregulating industries, liberalizing trade and investment, and enacting competition (antitrust or antimonopoly) laws. However, the quality of the investment climate that determines the risks and transaction costs associated with investing and operating a business, as well as the implementation of competition law and policy, tend to vary widely across …

Implementing Competition Law And Policy In Latin America: The Role Of Technical Assistance, Ana Maria Alvarez, Pierre Horna

Chicago-Kent Law Review

Despite all the bottlenecks faced in implementing competition law and policies (CLP) in Latin America, several countries have been able to organize competition regimes and establish effective competition agencies. Experience has shown that the adage "no one size fits all" holds true; each country adheres to its own agenda. Therefore, technical assistance (TA) entails a bottom-up progressive approach and reflects national priorities. At the outset of implementing a CLP in developing countries, it is worth keeping in mind certain questions: Will the new regulation represent an additional burden to the already-charged institutional setting, or will it be an additional rule …

Constitutional Transplants And The Mutation Effect, Horacio Spector

Chicago-Kent Law Review

This article is concerned with constitutional transplantation, that is, the borrowing of constitutional institutions and precedents from foreign jurisdictions. It pursues two main goals. First, it argues that the borrowing of constitutional texts can be successful over long periods of time, and that when the transplanted texts fail, this failure is not easily attributable to transplantation alone. Second, it introduces the notion of a "mutation effect" to the theoretical analyses of judicial transplants. By "mutation" of precedents, the author means the process of continuing to extend the scope of a holding, regardless of its factual basis, to cover situations not …

Domestic Bonds, Credit Derivatives, And The Next Transformation Of Sovereign Debt, Anna Gelpern

Chicago-Kent Law Review

Financial markets in poor and middle-income countries are experiencing a fundamental shift. Until recently, most of them were shallow-to-nonexistent and closed to foreigners. Governments often had to rely on risky borrowing abroad; the private sector had even fewer options. But between 1995 and 2005, domestic debt in the emerging markets grew from $1 trillion to $4 trillion dollars. In Mexico, domestic debt went from just over twenty percent of the total government debt stock in 1995 to nearly eighty percent in 2007. Over the same period, derivative contracts to transfer emerging market credit risk surpassed the market capitalization of the …

The Color Of Brazil: Law, Ethnic Fragmentation, And Economic Growth, Tade O. Okediji

Chicago-Kent Law Review

The influence of ethnic fragmentation on economic performance has been the subject of much scholarly inquiry in economics and political economics literature. Studies have shown that ethnic fragmentation has a distinct impact on the prospects for economic growth through its effect on government policies and in particular macroeconomic stabilization strategies. It has also become relevant in legal scholarship, especially with regard to developing antidiscrimination laws to ameliorate incessant conflict in plural societies. Accurate measurements of the scale or degree of ethnic fragmentation are important for determining sustainable economic development policies and legal policies for overall development planning. The multiple, complex, …

Corporate Social Responsibility: The Role Of Law And Markets And The Case Of Developing Countries, Antonio Vives

Chicago-Kent Law Review

In order for the corporation to engage in responsible practices, many obstacles must be overcome. One such obstacle is the belief of many managers that the corporation would be violating its fiduciary responsibility if it engaged in activities that go beyond what is required by the law. Another obstacle is that many of those practices have a real cost but are perceived not to have a corresponding tangible benefit. The article discusses and dismisses these perceived obstacles and argues that it is both through law and the workings of the market that responsible behavior can enhance society's welfare. It is …

Order Without (Enforceable) Law: Why Countries Enter Into Non-Enforceable Competition Policy Chapters In Free Trade Agreements, D. Daniel Sokol

Chicago-Kent Law Review

There has been an explosion in the past ten to fifteen years of bilateral and regional free trade agreements in Latin America (together, preferential free trade agreements or PTAs). The purpose of PTAs is to increase trade, regulatory, and investment liberalization. As trade liberalization requires more than just a reduction of tariffs, PTAs include "chapters" in a number of areas of domestic regulation. These chapters that address domestic regulation create binding commitments to liberalize domestic regulation that may impact foreign trade. Among chapters that address domestic regulation, many of the Latin American PTAs include a chapter on antitrust or competition …

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M. C. Mirow

Chicago-Kent Law Review

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics. Sensitivity to …

What Is The Point Of International Criminal Justice?, Mirjan Damaška

Chicago-Kent Law Review

The first part of the article discusses the goals international criminal courts have set for themselves. The author believes that these goals are too numerous, that they are often in conflict, and that the courts are not well suited for the achievement of some of them. This situation generates disparity between the courts' aspiration and achievement, a degree of disorientation, and difficulty in assessing the courts' performance. Disillusionment stemming from unfulfilled expectations, and inconsistencies springing from disorientation, are harmful to any system of justice, and especially to international criminal courts whose legitimacy is still fragile.

In the second part of …

Ex-Post-Booker: Retroactive Application Of Federal Sentencing Guidelines, Christine M. Zievel

Chicago-Kent Law Review

In United States v. Booker, a dramatic decision handed down in early 2005, the Supreme Court attempted to cure Sixth Amendment issues by excising the mandatory provisions of the U.S. Sentencing Guidelines and changing the binding role of the Guidelines to advisory. For close to twenty years, federal circuit courts had used the Ex Post Facto Clause to prohibit sentencing judges from retroactively applying revisions of the federal Guidelines. However, after Booker's advisory mandate and the Guidelines' supposed loss of force in sentencing decisions, some circuits have now found that the same retroactive application no longer violates the …

Vol. 24, No. 4, Sara D. Jay, Patricia J. Aletky Ph.D, L.P.

The Illinois Public Employee Relations Report

Contents:

Psychological Evaluation in Labor Arbitration, by Sara D. Jay and Patricia J. Aletky

Recent Developments

Further References, compiled by Yoo-Seong Song

The Principles Of Product Liability, In Symposium, Products Liability: Litigation Trends On The 10th Anniversary Of The Third Restatement, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Who’S Left Suspended On The Line?: The Ominous Hanging Paragraph And The Seventh Circuit’S Interpretation In In Re Wright, Simone Jones

Seventh Circuit Review

What happens to a 910 creditor’s claim under the BAPCPA where a Chapter 13 debtor surrenders the 910 vehicle to the creditor? Bankruptcy courts are divided—both among and within circuits—resulting in costly litigation between parties unsure of the approach to which the particular court subscribes. The Seventh Circuit, in In re Wright, became the first Court of Appeals to address this issue and concluded that where a debtor surrenders the 910 vehicle, the creditor is allowed to bifurcate its claim into a secured and unsecured portion. Specifically, if the amount of the claim exceeds the value of the surrendered …

Outer Marker Beacon: The Seventh Circuit Confirms The Contours Of Federal Question Jurisdiction In Bennett V. Southwest Airlines Co., William K. Hadler

Seventh Circuit Review

In Bennett v. Southwest Airlines Co., the Seventh Circuit was asked to rule on the contours of federal question jurisdiction. In the court’s analysis, it offered a recitation of the evolution of the boundaries of federal question jurisdiction where federal issues are embedded in state law claims. This history, especially in the Supreme Court, has been characterized by change. Much of the first 100 years of federal question jurisdiction, governed by the statutory grant of § 1331, was more broadly defined than the recent interpretation represented by the "Modern Test" announced by the Supreme Court’s 2005 decision in Grable …

Determining Whether Plaintiff Prevailed Is A "Close Question"—But Should It Be?, Nikolai G. Guerra

Seventh Circuit Review

According to the “American rule,” litigants must bear their own litigation costs, including attorneys’ fees, absent statutory authorization allowing otherwise. With the emergence of fee-shifting provisions in various statutes, particularly in the area of civil rights, a court may award a prevailing party its attorneys’ fees and other costs. Deciding whether a party prevailed for purposes of a fee-shifting statute, however, requires courts to engage in an analysis of the benefit the plaintiff has received from his judgment. Recently, in Karraker v. Rent-A-Center, the Seventh Circuit held that a plaintiff class prevailed for purposes of the American with Disabilities …

Missing The Forest For The Trees: The Seventh Circuit’S Refinement Of Bloom 'S Private Gain Test For Honest Services Fraud In United States V. Thompson, Robert J. Lapointe

Seventh Circuit Review

Public officials, as well as public employees, owe the public the fiduciary duty of providing their honest services. The mail fraud statute, 18 U.S.C. § 1341, proscribes using the mails to carry out “any scheme or artifice to defraud.” It further defines, in § 1346, “any scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” In passing these statutes, Congress never defined the terms “scheme or artifice,” “intangible right” or “honest services.” Because of this failure, the appellate courts have adopted limiting principles to prevent minor breaches of …

Familia Interruptus: The Seventh Circuit’S Application Of The Substantive Due Process Right Of Familial Relations, Scott J. Richard

Seventh Circuit Review

For almost a century, the Supreme Court has recognized the substantive due process right of individuals to be free from government intrusion into the control and management of their families. From its inception, however, the Supreme Court’s jurisprudence related to this constitutional right has been ambiguous, as its rhetoric has outstripped its application and explication of this fundamental liberty interest. The Court’s most recent decision on familial rights, Troxel v. Granville, also failed to provide lower courts with proper guidance as to how to apply and protect this due process right. In the context of this confused Supreme Court …

The Politics Of Reversal: The Seventh Circuit Reins In A District Court Judge’S Wayward Employment Discrimination Decisions, Timothy Wright

Seventh Circuit Review

In the span of four months, the Seventh Circuit reversed the same district court judge, Judge Samuel Der-Yeghiayan, in three separate employment discrimination opinions. In all three cases, the district court had granted the employers’ motions for summary judgment in their entirety. However, the Seventh Circuit held that the majority of these rulings were improper due to the district judge’s inattention to critical details in the record and his misplaced reliance on minor technical rulings that sidestepped the cases’ glaring issues of credibility and contested fact. This Comment reviews the common themes in the Seventh Circuit’s criticisms of the district …

No More Imports: Seventh Circuit Decision In United States V. Genendo Is An Expensive Pill For American Consumers To Swallow, Nicole L. Little

Seventh Circuit Review

Approximately half of American consumers take at least one prescription drug a day. However, the United States has significantly higher drug prices than most other countries, and many American consumers struggle to pay for the drugs they need. A legislative response to America’s drug-pricing problem has been slow to transpire, and consumers have turned elsewhere to cut their costs. Some consumers personally import from countries abroad that sell the drugs they need at discounted prices. The drugs these consumers receive may not be of the same quality they expect from drugs bought in the United States, but they are willing …

"Based Upon" And The False Claims Act's Qui Tam Provision: Reevaluating The Seventh Circuit's Method Of Statutory Interpretation, Antonio J. Senagore

Seventh Circuit Review

No one knows precisely why Congress used the phrase “based upon” in the Public Disclosure Bar of the False Claims Act, but the phrase’s meaning has confounded the circuit courts. In United States ex rel. Fowler v. Caremark Rx, LLC, the Seventh Circuit reaffirmed its narrow, minority definition of “based upon.” In its brief decision, the court skipped over a complex analysis of the Public Disclosure Bar. Yet, through that statute, Congress tried to keep opportunists from abusing the qui tam provision, which lets private citizens pursue billions of dollars lost to government fraud. After reexamining the Seventh Circuit’s …

Cracking The Door To State Recovery From Federal Thrifts, Daniel M. Attaway

Seventh Circuit Review

In the midst of the Great Depression, Congress created the Office of Thrift Supervision (“OTS”) to oversee and regulate the federally chartered thrift industry. Congress granted the OTS the power to create regulations to examine thrifts, ensure they were sound, and to preempt state laws affecting their operations, but not the power to provide remedies to a thrift’s customers. Over the next 70 years, the courts consistently interpreted Congress’ grant of regulatory authority as plenary—preempting almost any state law that affected, even minimally, the operation of a federal thrift. The Seventh Circuit, in In re Ocwen Loan Servicing, LLC Mortgage …