Law Commons^™

When Good Leaders Lose Their Way, Mark Whitacre

Loyola University Chicago Law Journal

No abstract provided.

The Intertwined Fates Of Affirmative Action And The Military, Robert Knowles

Loyola University Chicago Law Journal

This Article explores the deep connections between the crises facing the military and affirmative action. The military struggles with a sexual assault epidemic and a related failure to achieve gender and racial equality, both of which undermine its ability to effectively carry out its mission. Affirmative action faces growing skepticism from the American public and from the courts, which have been gradually eliminating the ground on which gender- and race-conscious measures can be constitutionally justified.

In this time of crisis for both, the military and affirmative action need each other like never before. Affirmative action needs the military to tell …

Is There A Vatican School For Competition Policy?, Tihamer Toth

Loyola University Chicago Law Journal

This Article examines whether the Catholic Church’s social teaching has something to tell antitrust scholars and masters of competition policy. Although papal encyclical letters and other documents are not meant to provide an analytical framework giving clear answers to complex competition questions, this does not mean that these thoughts cannot benefit businessmen, scholars, and policy makers. The Vatican teaching helps us remember that business and morality do not belong to two different worlds, and that markets should serve the whole Man. It acknowledges the positive role of free markets,that is, the exercise of economic freedom as being an important part …

Around The World Of Securities Fraud In Eighty Motions To Dismiss, Wendy Gerwick Couture

Loyola University Chicago Law Journal

No abstract provided.

Confidential Informants And Securities Class Actions: Mixed Messages And Motives, Jed S. Rakoff

Loyola University Chicago Law Journal

No abstract provided.

Recanting Confidential Witnesses In Securities Litigation, Gideon Mark

Loyola University Chicago Law Journal

This Article examines the contentious and recurring issue of how courts should handle confidential witnesses in securities litigation who recant the information attributed to them in complaints or deny that they ever provided such information to plaintiffs’ counsel and/or investigators. The use by plaintiffs of confidential witnesses has become ubiquitous in recent years, as a primary unintended effect of the Private Securities Litigation Reform Act of 1995. That legislation raised the bar for pleading securities fraud and established an automatic stay of all discovery and other proceedings during the pendency of a motion to dismiss, absent application of one of …

The Private Securities Litigation Reform Act And Particularity: Why Are Some Courts In An Alternate Universe?, Charles W. Murdock

Loyola University Chicago Law Journal

The focus of this Article is to suggest that the judicial decision-making process is often not as rational and objective as we would like to believe. Bias often affects the decision making of judges, sometimes to the extent that it appears that the writer of the opinion is living in an alternate universe.

As we progress professionally, and become more steeped in our biases, we sometimes move toward creating a world that exists in our heads and has little relation to the “real” world. While this assertion will be developed in the context of courts’ interpreting “particularly” in the Private …

Oil And Water: Mixing Taxable And Tax-Exempt Shareholders In Mutual Funds, Jeffrey M. Colon

Loyola University Chicago Law Journal

As of 2012, roughly 23% of U.S. households’ assets and 50% of retirement assets are invested in mutual funds, thus making mutual funds one of the most important investment vehicles for U.S. households. The federal taxation of mutual funds and mutual fund shareholders has played a vital role in the development of mutual funds and their appeal to U.S. investors.

Despite the significant amount of mutual fund assets held in retirement accounts, there has been very little analysis of the issues that arise when taxable and tax-exempt shareholders invest together in the same mutual fund. A substantial body of research …

Are Sox And Dodd-Frank Securities Law? The Answer Is Up In The Air, Geoffrey Christopher Rapp

Loyola University Chicago Law Journal

No abstract provided.

Pleading Securities Fraud Claims--Only Part Of The Story, Marc I. Steinberg

Loyola University Chicago Law Journal

No abstract provided.

(Ad)Ministering Justice: A Prosecutor's Ethical Duty To Support Sentencing Reform, Michael Cassidy

Loyola University Chicago Law Journal

This Article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level―promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a …

Cracks In The Ivory Tower: How The Campus Sexual Violence Elimination Act Can Protect Students From Sexual Assault, Lauren P. Schroeder

Loyola University Chicago Law Journal

Sexual assault is a pervasive problem on college campuses, yet colleges and universities are frequently criticized for their failure to address it. As a result, Congress passed the Campus Sexual Violence Elimination Act (“Campus SaVE Act”) in 2013. The Campus SaVE Act aims to address the unique needs of victims of sexual assault on college campuses by adding much needed protections for students, such as mandating increased reporting of crime statistics. Moreover, the Act helps students by requiring schools to create plans to prevent this violence, to educate victims on their rights and resources, and to detail processes that are …

Truth Stories: Credibility Determinations At The Illinois Torture Inquiry And Relief Commission, Kim D. Chanbonpin

Loyola University Chicago Law Journal

This is the first scholarly Article to investigate the inner workings of the Illinois Torture Inquiry and Relief Commission (“TIRC”). The TIRC was established by statute in 2009 to provide legal redress for victims of police torture. Prisoners who claim that their convictions were based on confessions coerced by police torture can utilize the procedures available at the TIRC to obtain judicial review of their cases. For those who have exhausted all appeals and post-conviction remedies, the TIRC represents the tantalizing promise of justice long denied. To be eligible for relief, however, the claimant must first meet the TIRC’s strict …

Inclusionary Eminent Domain, Gerald S. Dickinson

Loyola University Chicago Law Journal

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept serves as a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model that is equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefits Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (CLTs) and Neighborhood Improvement Districts (“NIDs”).

The origins of the concept derive from the zoning law context, where exclusionary zoning in …

Improving Hipaa Enforcement And Protecting Patient Privacy In A Digital Healthcare Environment, Roger Hsieh

Loyola University Chicago Law Journal

Electronic medical records (“EMRs”) have helped healthcare organizations improve patient care, but EMRs are susceptible to exposing the confidentiality of patients’ medical records to identity thieves and members of the general public. The federal enforcement of patient privacy law—notably the Health Insurance Portability and Accountability Act (“HIPAA”), which was designed to deter and punish breaches of patient privacy—has failed to keep pace with new privacy risks posed by healthcare technology. Although federal legislation now allows state Attorneys General to file suit under HIPAA, for reasons explained in this Article, they too will not enforce HIPAA effectively. Because institutional enforcement of …

A Test By Any Other Name: The Influence Of Justice Breyer's Concurrence In Kiobel V. Royal Dutch Petroleum Co., Alex S. Moe

Loyola University Chicago Law Journal

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application to the Alien Tort Statute (“ATS”). In doing so, the Court undermined the generally accepted view of the ATS: that it could apply to actions abroad. Applying this presumption severely limited the factual circumstances that could produce a viable ATS claim. The majority opinion carved an exception, permitting extraterritorial ATS claims that “touch and concern” the United States, but declined to set more specific guidelines. In the absence of such guidelines, lower courts have applied the presumption in an overbroad fashion, barring claims that …

Undead Statutes: The Rise, Fall, And Continuing Uses Of Adultery And Fornication Criminal Laws, Joanne Sweeny Dr.

Loyola University Chicago Law Journal

Cohabitation is a reality for a majority of Americans. Nonmonogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. …

Threats And Bullying By Prosecutors, Bennett L. Gershman

Loyola University Chicago Law Journal

No abstract provided.

The Law And Economics Of Stop-And-Frisk, David Abrams

Loyola University Chicago Law Journal

The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research

Securities Litigation As A Window Into Supreme Court Litigation, Thomas Goldstein

Loyola University Chicago Law Journal

No abstract provided.

Navigating Alternatives To Securities Fraud Class Actions: State Law And Opt-Out Litigation, Jeffrey Paul Mahoney

Loyola University Chicago Law Journal

No abstract provided.

Sentencing Enhancement And The Crime Victim's Brain, Francis X. Shen

Loyola University Chicago Law Journal

Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”? Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses. This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries? The Article argues that classification of “mental” as wholly distinct …

The Road Map For Class Certification Post- Halliburton Ii, Marc I. Gross

Loyola University Chicago Law Journal

No abstract provided.

Class-Action Tolling, Federal Common Law, And Securities Statutes Of Repose: A Recommendation, Wendy Gerwick Couture

Loyola University Chicago Law Journal

This Essay focuses on a narrow, but potentially outcome-determinative, question: Does the filing of a securities class action toll the three-year outer time limit applicable to claims under sections 11 and 12(a)(2) of the Securities Act and the five-year outer time limit applicable to claims under section 10(b) of the Securities Exchange Act, such that potential class members—after a decision on class certification—can assert an individual federal action, even if those outer time limits would have elapsed absent tolling? There is currently a circuit split on this issue, with the Tenth Circuit answering “yes” and the Second Circuit answering “no.” …

How To Talk About Sentencing Policy--And Not Disparity, Nancy Gertner Judge

Loyola University Chicago Law Journal

No abstract provided.

Going Retro: Abolition For All, Kevin Barry

Loyola University Chicago Law Journal

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty. Some states, …

The Importance Of Conducting Thorough Investigations Of Confidential Witnesses In Securities Fraud Litigation, Leigh Handelman Smollar

Loyola University Chicago Law Journal

This Article examines the use of confidential witnesses (“CWs”) in investigating and substantiating securities fraud claims. The Private Securities Litigation Reform Act has placed a heavy burden on plaintiffs at the pleading stage, which has caused plaintiffs to perform preliminary investigations and seek confidential information as a basis for their allegations in the complaint. Testimony of CWs is often the centerpiece of the evidence substantiating plaintiffs’ securities fraud claims. As a result, the investigation conducted prior to filing an amended complaint has become a central issue in the realm of securities litigation, subject to attack by the defendants. This Article …

Pleading Securities Fraud Claims: The Good, The Bad, And The Ugly, Sharon Nelles, Hilary Huber

Loyola University Chicago Law Journal

No abstract provided.

Keeping Trolls Out Of Courts And Out Of Pocket: Expanding The Inequitable Conduct Doctrine, Giordana Mahn

Loyola University Chicago Law Journal

Patent Asserting Entities (“PAEs”), often compared with the mythological troll who lurks under a bridge it did not build, demanding payment from anybody who wants to pass, are criticized for their business model as a type of “holdup” on innovation. They wait until a practicing entity infringes, then demand payment for technology that they did not create. Their critics charge PAEs with stifling innovation, crippling research and development, and chilling healthy competition. And although the courts, Congress, and government agencies identified PAEs as an issue since their recent emergence, current patent laws are ill-suited to limit PAE litigation and combat …

The Virtues Of Private Securities Litigation: An Historic And Macroeconomic Perspective, Steven A. Ramirez

Loyola University Chicago Law Journal

In the wake of the Great Depression, the federal securities laws operated to mandate disclosure of material facts to investors and extend broad private remedies to victims of securities fraudfeasors. The revelation of massive securities fraud underlying the Great Depression animated the federal securities laws as investment plunged after 1929 and failed to recover for years. For over sixty years after the enactment of the federal securities laws, no episode of massive securities fraud with significant macroeconomic harm occurred. The federal securities laws thereby operated to facilitate financial stability and prosperity, in addition to a superior allocation of capital. Unfortunately, …