Law Commons^™

Health Theater, Govind Persad

Loyola University Chicago Law Journal

“Security theater” has been defined as an effort to “provide the feeling of security instead of the reality.” The concept of security theater has been discussed in both the popular press and academic literature, but has not yet entered health law. This project suggests that a parallel category of “health theater” picks out a set of practices in medical screening and health care delivery that provide a mere simulacrum of protection against medical risk, rather than providing genuine medical benefit. Part I summarizes some of the distinctive advantages and disadvantages of health and security theater. Like security theater, health theater …

Table Of Contents

Loyola University Chicago Law Journal

No abstract provided.

Confrontation's Convolutions, Christine Chambers Goodman

Loyola University Chicago Law Journal

Despite the Supreme Court’s efforts in the 2004 Crawford v. Washington case to narrow the parameters of the Sixth Amendment right to confrontation, lower courts vary widely in interpreting when the Confrontation Clause applies. Subsequent 5–4 and 4–1–4 decisions of the Court have raised more questions than answers, especially in the context of expert testimony. In analyzing the decade of cases, this Article finds that confusion abounds in three primary areas: (1) which witnesses are actually witnesses against the accused, (2) whether the evidence must be accusatory in order to be testimonial, or must be both accusatorial and testimonial, and …

When Lightning Strikes: Hadley V. Baxendale's Probability Standard Applied To Long-Shot Contracts, Daniel P. O'Gorman

Loyola University Chicago Law Journal

There is a type of contract that could go virtually unenforced as a result of the rule of Hadley v. Baxendale. When a contract’s principal purpose is to enable the plaintiff to obtain an opportunity for an unlikely profit or to avoid an unlikely loss (a “long-shot contract”), and the defendant’s breach causes the plaintiff to lose the profit or suffer the loss, Hadley’s requirement that a loss be reasonably foreseeable at the time of contract formation would preclude recovery. This is demonstrated by Offenberger v. Beulah Park Jockey Club, Inc., where the Hadley rule precluded the recovery of …

A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks

Loyola University Chicago Law Journal

Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries learn …

Waters Dark And Deep: The Continuing Validity Of The “Testing The Waters” Doctrine In Illinois, Alex S. Moe

Loyola University Chicago Law Journal

Substitutions of judge in Illinois civil proceedings are characterized as a right, but that was not always the case. Under prior versions of the substitution statute, judges could deny a substitution request if the party seeking it had “tested the waters,” or had a chance to determine the judge’s opinion as to an aspect of the case’s merits. The modern substitution statute grants each party one substitution as of right, largely displacing the “testing the waters” doctrine. Our appellate courts today are split on the issue of whether the doctrine is still viable: while most apply it without questioning its …

The Legislative Veto In Illinois: Why Jcar Review Of Agency Rulemaking Is Unconstitutional, Marc D. Falkoff

Loyola University Chicago Law Journal

This Article argues that legislative vetoes of administrative agency rulemaking in Illinois are unlawful under the state’s constitution. It focuses on the Joint Committee on Administrative Rules (“JCAR”), a bipartisan legislative committee that is authorized to review rules promulgated by administrative agencies in the executive branch. Since 2004, JCARhas possessed veto power over agency rulemaking, meaning that the committee may permanently stop implementation of new rules upon the vote of three-fifths of its twelve members. For even longer, the Illinois General Assembly has been authorized to block implementation of agency rules through passage of joint resolutions, which do not require …

Contracting Trademark Fame?, Leah Chan Grinvald

Loyola University Chicago Law Journal

Contracts abound in today’s highly digitized society. Did you snap a pic and upload it to Instagram? You entered into a contract. Did you check your friends’ statuses on Facebook? Yep, you also entered into a contract. Did you know you entered into a contract or even if you were aware of this fact, did you know the terms to which you agreed? Probably not. But despite this, we are all obligated by these contracts, so long as we are somehow made aware that we could read the terms at some point if we had the inclination to do so. …

Metatheory, Garrick B. Pursley

Loyola University Chicago Law Journal

Constitutional theory has been challenged in recent years, by significant figures in the legal field, as essentially pointless. Too much normativity, not enough neutrality; too much conjecture, not enough data; too much politics, not enough truth. How should we constitutional theorists answer this basic challenge to the foundation of our research program? I suggest one possible solution here: we can make the discipline more rigorous by changing the way in which we assess competing claims in constitutional theory. Drawing on important work in epistemology, the philosophy of science, and legal theory, I examine the question of theory assessment and selection. …

Italicized:People V. Burns: The Unconstitutionality Of The Illinois Aggravated Unlawful Use Of A Weapon Statute, Maria Elena Martinez

Loyola University Chicago Law Journal

No abstract provided.

The Enduring Ambiguities Of Antitrust Liability For Worker Collective Action, Sanjukta M. Paul

Loyola University Chicago Law Journal

This Article examines the regulation, by antitrust law, of collective action by low-wage workers who are classified as independent contractors, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust law. Such workers find themselves in the position of most workers prior to the New Deal: at once lacking labor protections, yet exposed to antitrust liability for organizing to improve their conditions. I argue that this default rule is the legacy of a problematic history that is taken for granted by the contemporary antitrust framework.

In Part I, I show that the threat of antitrust …

Technological Progress And Well-Being, Ofer Tur-Sinai

Loyola University Chicago Law Journal

Under the utilitarian justification for the patent system, patents advance overall well-being by promoting technological progress. As patents incentivize innovation through the grant of market exclusivity, market demand has a leading role in directing innovation. The reliance on market demand reflects a choice of preference satisfaction as the criterion of well-being underlying the patent system. Accordingly, the concept of technological progress that the patent system is set to promote is rather simplistic. It includes those future goods that current market participants would value the most, or in other words: new stuff that sells.

This Article deviates from this conventional account …

The Judiciary’S Inputs In Constitutional Rights Adjudication, Mark D. Rosen

Loyola University Chicago Law Journal

No abstract provided.

Comprehensive Police Officer Body Camera Guidelines In Illinois, Liane C. Dublinski

Loyola University Chicago Law Journal

No abstract provided.

Modeling The Likely Effects Of Litigation Financing, Jeremy Kidd Ph.D

Loyola University Chicago Law Journal

The arguments for and against third-party litigation financing are based on incorrect assumptions regarding the impacts on total litigation. A formal model incorporating the choices of the plaintiff, the lawyer, and the financier shows only minimal impact on total litigation, largely positive. Yet, after addressing the potential for long-term, strategic behavior by financiers, it is obvious that some dangers remain. Divorced from the dramatic claims of proponents and opponents, litigation financing is merely a tool that can be used for good or bad, and differentiating by types of claims and the incentives of the parties allows that tool to be …

Is Our Legal Order Just Another Bureaucracy?, Robert P. Burns

Loyola University Chicago Law Journal

No abstract provided.

Loyalty And Deference At Oral Arguments: An Empirical Examination Of How Supreme Court Justices Treat Solicitors General, Amanda C. Bryan, Charles Gregory, Timothy R. Johnson

Loyola University Chicago Law Journal

It is well documented that when the Office of the Solicitor General argues before the United States Supreme Court it is widely successful. Scholars have taken this success as evidence that the Court is deferential to the Solicitor General’s office. This Article argues, however, that success is not synonymous with deference. Instead, by examining how the Justices treat the Solicitor General and deputies, this Article develops a more nuanced measure of deference to explain how and why the Court treats the Solicitor General differently than it treats other attorneys who appear before the nation’s highest court. This Article uses this …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Loyola University Chicago Law Journal

No abstract provided.

Rethinking The Phosita In Patent Litigation, Greg Reilly

Loyola University Chicago Law Journal

This Article was prepared for the Loyola University Chicago Law Journal’s Symposium “Decisions, Decisions: Exploring Factors that Affect the Judicial Decision-Making Process.” It questions the trend in Supreme Court cases and academic commentary toward greater reliance in patent litigation on the hypothetical “person having ordinary skill in the art” (“PHOSITA”)—essentially a person of average abilities in the technical field of the invention. This trend reflects a desire to approach as closely as possible the first-best outcome of accuracy to the technical merits of patent disputes. But this first-best outcome is impossible given the constraints imposed by lay decision makers. Long-standing …

Money Will Likely Be The Carrot, But What Stick Will Keep Acos Accountable?, Erin E. Dine

Loyola University Chicago Law Journal

Seeking a resolution to the wasteful and inefficient health care system in the United States, the 2010 Patient Protection and Affordable Care Act (“PPACA”) reframed the health care market, incentivizing a lower-costing, higher-quality system. In its attempt to improve patient access to a more accountable and coordinated health care system, the PPACA included and authorized the use of the Accountable Care Organization (“ACO”). Groups of health care providers collaborate through an ACO in hopes of delivering, and reaping the financial benefit from, high-quality, low-cost health care. Despite the attractive goals set by the PPACA, the reality of medical malpractice liability …

Oyez, Oyez, Oyez, The King’S Court Is Now In Session, Kelly Kearney

Loyola University Chicago Law Journal

King v. Burwell—the decision that sparked interpretive pandemonium surrounding the meaning of four simple words—symbolized that the United States Supreme Court, albeit the highest court in America, may have more power than originally thought or intended. At the heart of the King case was the issue of whether the Patient Protection and Affordable Care Act (“ACA”) authorized federal online insurance markets (i.e., Exchanges) to offer subsidized health insurance (“subsidies”) to individuals that resided in a state without a state-established Exchange. The ACA provides for these subsidies to be available through Exchanges “established by the State.” But the Internal Revenue …

Changing Standards Of Review, Jeffrey C. Dobbins

Loyola University Chicago Law Journal

Do standards of review matter? On the one hand, judges insist that they do, and appellate practitioners know that they ignore standards of review at their peril. On the other hand, it is not unusual to find judges and academics who concede that there is not much difference between the many standards of review, and that the articulation of the standard may not make much of a difference in reversal rates.

To test the question, researchers would ideally take a set of cases, have a court decide them under one standard of review, and then, while avoiding any bias from …

The Future Of Oral Argument, Jay Tidmarsh

Loyola University Chicago Law Journal

No abstract provided.

Forum Selling And Domain-Name Disputes, Daniel Klerman

Loyola University Chicago Law Journal

The system for resolving domain-name disputes is unique in that it gives the complainant—a trademark owner who claims that a domain name violates its mark—the unilateral ability to choose the arbitration provider. As a result, providers, whether motivated by profit or prestige, have incentives to favor the complainant. Empirical analysis confirms that complainants choose providers who are more likely to decide cases for the trademark owner, rather than based on speed. The domain-name dispute-resolution system should be modified to allow both complainant trademark owner and respondent domain-name registrant to strike an equal number of arbitration providers. This reform would give …

Boxed In: Reclassification Of Arab Americans On The U.S. Census As Progress Or Peril, Khaled A. Beydoun

Loyola University Chicago Law Journal

The United States Bureau of the Census has proposed a standalone “Middle Eastern or North African” (“MENA”) box for the 2020 census. Deemed white by law since 1944, the 2020 census may afford Arab Americans the unprecedented opportunity to identify as MENA, and nonwhite—the latter standing as a per se designation that conflicts with federal and local surveillance, profiling, and policing of Arab Americans during the protracted “War on Terror.” Since the 1980s, Arab American organizations have lobbied the Census Bureau to recognize Arab Americans as a distinct demographic. These efforts proved futile, until after the September 11th terrorist attacks, …

The Doctrinal Toll Of Information As Speech, Kyle Langvardt

Loyola University Chicago Law Journal

Courts over the past two decades have reached a near consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake other spheres of non-expressive economic activity in the Internet’s image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a future-shocked …

Chill, Jennifer M. Kinsley

Loyola University Chicago Law Journal

Courts frequently assess the constitutionality of government regulation on free speech by reference to the law’s impact on hypothetical expression not before the court. In some instances, courts have permitted litigants whose speech is not regulated by a statute to nevertheless raise First Amendment overbreadth challenges on the basis that third-party expression might be chilled—as in, silenced. Still, in other instances, courts have invalidated government regulation on the basis of its impact upon the hypothetical expression of others. In either event, the concept of a chilling effect is a speculative and superfluous misnomer that has no place in First Amendment …

Risky Ip, Andres Sawicki

Loyola University Chicago Law Journal

This Article challenges a standard proposition in intellectual property theory: creators are risk averse and, by extension, IP risk is undesirable. The interdisciplinary field of creativity research suggests that this proposition is wrong. A willingness to take risks appears to be an essential part of the creative personality, and creative individuals may even prefer risk to certainty. Creativity research also indicates that risk might be an environmental factor facilitating creativity, whether or not creators themselves prefer it. As a result, IP scholars should not generally assume that creators are risk averse; instead, the most plausible starting point is that creators …

Nino And Me: A Tribute To Justice Antonin Scalia, Jean M. Gaspardo

Loyola University Chicago Law Journal

No abstract provided.

Truth And Legitimacy (In Courts), Kenneth S. Klein

Loyola University Chicago Law Journal

This Article seeks to comprehensively articulate the meaning, role, and importance of truth in courts by drawing upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as United States Supreme Court decisions. It is frequently said that trials are a search for truth. But as insiders to the judicial system know, if this is so, then it is a meaning of truth that differs from what truth means in any other context. And exposing this definitional dissonance, in turn exposes that the legitimacy of the …