Law Commons^™

Courting Specialization: An Empirical Study Of Claim Construction Comparing Patent Litigation Before Federal District Courts And The International Trade Commission, David L. Schwartz

All Faculty Scholarship

The United States International Trade Commission (ITC) has recently become an important adjudicator of patent infringement disputes, and the administrative law judges (ALJs) on the ITC are widely viewed as experts on patent law. This Article empirically examines the performance of the ITC in patent claim construction cases. The Article also compares the performance of the ITC on claim construction with that of federal district courts of general jurisdiction. This study does not find any evidence that the patent-experienced ALJs of the ITC are more accurate at claim construction than district court judges or that the ALJs learn from the …

Transforming Legal Aid, Ronald W. Staudt

All Faculty Scholarship

No abstract provided.

Vol. 26, No. 2, Lewis Maltby

The Illinois Public Employee Relations Report

Contents:

Brave New Workplace: Genetic Discrimination, by Lewis Maltby

Recent Developments

The Other Same-Sex Marriage Debate, Jane S. Schacter

Chicago-Kent Law Review

The high profile contemporary controversy about whether to allow same-sex couples to marry has obscured an earlier debate about same-sex marriage. This previous debate took place inside the LGBT movement, where equality advocates faced off about whether marriage equality ought, as a normative matter, to be pursued. With few exceptions, this internal critique of LGBT marriage has receded. In this article, Professor Schacter revisits the earlier debate, considers why pro-equality marriage skepticism faded, reflects on how the public debate about same-sex marriage today might have unfolded differently had the marriage skeptics within the LGBT community held more sway, and suggests …

Exorcising The Ghosts Of Bowers V. Hardwick: Uprooting Invalid Precedents, Arthur S. Leonard

Chicago-Kent Law Review

After the Supreme Court rejected a constitutional challenge to criminal sodomy laws in Bowers v. Hardwick (1986), lower federal courts almost invariably took the position that gay litigants could not prevail in challenging governmental discrimination on the basis of sexual orientation, reasoning that if conduct that "defined the class" was not constitutionally protected, government discrimination against the class should not be considered presumptively unconstitutional. Such logic should have been discarded after the Supreme Court's decision in Romer v. Evans (1996), and certainly after Lawrence v. Texas (2003), in which the Court expressly overruled Bowers v. Hardwick. But lower federal …

Bias In The Workplace: Consistent Evidence Of Sexual Orientation And Gender Identity Discrimination 1998–2008, M.V. Lee Badgett, Brad Sears, Holning Lau, Deborah Ho

Chicago-Kent Law Review

This article summarizes social science data published during the past decade documenting discrimination against lesbian, gay, bisexual, and transgender (LGBT) people in employment. Over the last ten years, many researchers have conducted studies to find out whether LGBT people face sexual orientation discrimination in the workplace. These studies include surveys of LGBT individuals' workplace experiences, wage comparisons between lesbian, gay, and bisexual (LGB) and heterosexual persons, analyses of discrimination complaints filed with administrative agencies, and testing studies and controlled experiments.

Frenzy-Free Funerals: The Least America Owes Its Fallen Heroes, Robert J. Grindle

Chicago-Kent Law Review

Frenzy-Free Funerals: The Least America Owes its Fallen Heroes analyzes the constitutionality of the Respect for America's Fallen Heroes Act (RAFHA). After detailing relevant First Amendment cases, the note examines court treatment of funerals and death-related issues. The history and purpose of funerals is examined from a psychological and sociological perspective, including a funeral's significance to individuals and society at-large. Finally, the note concludes that the RAFHA is constitutional under the First Amendment, given the relevant test, court cases, and societal norms.

Table Of Contents - Issue 2, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward Stein

Chicago-Kent Law Review

For many years, a common argument made by opponents of same-sex marriage was that marriage crucially involves procreation and, because couples consisting of two people of the same sex simply cannot procreate, therefore, same-sex couples should not be able to marry. While this argument is now widely seen as weak, in its place, a new argument that also involves procreation has emerged that focuses on the claim that different-sex—but not same-sex-couples, can accidentally procreate. Because of this risk of accidental procreation and the associated risk of harm to children who result from accidental procreation, proponents of this argument conclude …

Marriage, Tort, And Private Ordering: Rhetoric And Reality In Lgbt Rights, John G. Culhane

Chicago-Kent Law Review

This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970's through late 2008. Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970's, the socially enforced invisibility of gay lives and relationships translated into an inability to regard …

Doma And The Internal Revenue Code, Patricia A. Cain

Chicago-Kent Law Review

The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. The article then considers other justifications for applying DOMA to federal tax law and concludes that none of them meet minimal levels of rationality …

Madisonian Pornography Or, The Importance Of Jeffrey Sherman, Andrew Koppelman

Chicago-Kent Law Review

James Madison's classic attack on the Sedition Act shows how free speech protection is vital to the functioning of democracy. His argument reaches toward, but does not fully defend, a right to pornography. Jeffrey Sherman's work, which shows that gay pornography played a significant role in the genesis of the gay rights movement, completes the Madisonian argument. The more general lesson is that speech consisting of claims about what goods are worth pursuing—such as pornography, which implicitly contains claims about what sexual goods are worth pursuing—should always be understood to be part of protected public discourses.

Corporate Self-Regulation And The Future Of Workplace Governance, Cynthia Estlund

Chicago-Kent Law Review

American labor law has largely failed to deliver a viable mechanism for employee representation in workplace governance, while the ever-expanding body of employment law does not even attempt to do so. The resulting "democratic deficit" in the workplace is a problem in part because, without employee representation, the rights and labor standards mandated by employment law are widely under-enforced. But that very problem could point toward a solution. For while employment law does not aim to give employees a role in workplace governance, it has in fact fostered the growth of new governance mechanisms within firms in the form of …

Righting The Notice Pleading Ship: How Erickson V. Pardus Solidifies The Modern Supreme Court Trend Of Notice-Giving In Light Of Bell Atlantic Corporation V. Twombly, Jerermy D. Kerman

Chicago-Kent Law Review

This note traces the history of pleading in the United States from the adoption of the Federal Rules in 1938 through the Twombly and Erickson decisions in the summer of 2007. Specifically, this note examines the Twombly decision and its effects on the trend the Supreme Court has established over the last half-century concerning the notice pleading standard of Rule 8(a)(2). This note also suggests that the Twombly Court effectively created a heightened pleading standard for antitrust cases, even though it specifically denied doing so. I then analyze the Erickson decision and how the timing and direct nature of Erickson …

The Evolution Of Academic Discourse On Sexual Orientation And The Law: An Introduction To A Festschrift In Honor Of Jeffrey Sherman, Christopher R. Leslie

Chicago-Kent Law Review

No abstract provided.

The Medical Monitoring Remedy: Ongoing Controversy And A Proposed Solution, Adam P. Joffe

Chicago-Kent Law Review

Prior to the mid-1980s, tort law adhered to the traditional notion that the threat of future harm was not an adequate ground to pursue a claim in tort. However, in Friends for All Children v. Lockheed Aircraft Corp., the United States Court of Appeals for the District of Columbia awarded a group of plaintiffs the cost of future medical examinations aimed at detecting whether the plaintiffs suffered from a particular neurological impairment. This new remedy became known as "medical monitoring."

Since Friends for All Children v. Lockheed Aircraft Corp., the medical monitoring remedy has attracted controversy and has …

Panel Discussion: Specialized Courts: Lessons From The Federal Circuit, The Federalist Society For Law And Public Policy 2008 National Lawyers Convention

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Circumventing Rights Controls: The Token Crack In The Fair Use Window Left Open By Congress In Section 1201 May Be Open Wider Than Expected --Technically Speaking, Neil J. Conley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Patent Entirely And Exclusively Focused On An Art-Additive Hits The Validity Bull's Eye, Hal Milton

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Economic Espionage Act And The Threat Of Chinese Espionage In The United States, Jonathan Eric Lewis

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Trademark Arbitration: A First Rate Change For A Second Life Future, Boris Shapiro

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Quantum Of Originality In Copyright, Katherine L. Mcdaniel, James Juo

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Technological Classroom, Debbie Ginsberg

Presentations

This Brown Bag session provided an overview of current trends and future developments in classroom technology.

Instant Publishing With Ssrn And Selected Works, Debbie Ginsberg

Presentations

Debbie Ginsberg demonstrated how to upload articles to SSRN and Selected Works.

An Identity Crisis Of International Organizations, Sungjoon Cho

All Faculty Scholarship

An Identity Crisis of International Organizations Abstract International organizations (IOs) are ubiquitous. More than two hundred IOs touch our everyday lives, ranging banking to flu-shots. However, conventional political scientists seldom pay sufficient attention to IOs which they thoroughly deserve given their contemporary prominence. Because conventional international relations (IR) theories consider IOs as mere passive machineries, they hardly offer a satisfactory explanation on a distinctive mode of IOs’ institutional dynamic, in which a specific IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This Essay offers a novel perspective which attempts to …

The Regulatory Response To Madoff, Anita Krug

All Faculty Scholarship

This white paper evaluates investor protection mechanisms in the securities regulatory regime at the time the Madoff fraud was exposed. It considers whether the post-Madoff call for additional regulation of hedge funds and/or their managers - and/or their respective activities - was warranted.

Submitting To Law Reviews, Debbie Ginsberg

Presentations

This Brown Bag session covered current trends in submitting articles, focusing on formatting, ExpressO, and submissions policies.

The World Trade Constitutional Court, Sungjoon Cho

All Faculty Scholarship

The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …

Promoting Yourself On The Web, Debbie Ginsberg

Presentations

This Brown Bag session demonstrated how to use blogs and other websites to promote your legal scholarship.

Planning For A Bull Market For Wetlands, Fred P. Bosselman

All Faculty Scholarship

Until recently, wetlands had value in the marketplace only as targets for destruction. Today, wetlands often have market value for uses that do not require that they be dredged and filled. Such opportunities include: 1. Carbon storage offsets for greenhouse gas emissions; 2. Mitigation banks for destruction of other wetlands; 3. Conservation banks for wildlife protection; 4. Tradable water quality protection rights; 5. Sites for growing algae or other biofuel crops. These new uses have valid public benefits, but most laws and ordinances were not written with these possibilities in mind. Planners and lawyers need to think about ways to …