Law Commons^™

Freedom Comes Only From The Law': The Debate Over Law's Capacity And The Making Of Brown V. Board Of Education, Christopher W. Schmidt

All Faculty Scholarship

From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating …

The International Joint Commission And Great Lakes Diversions: Indirectly Extending The Reach Of The Boundary Waters Treaty, A. Dan Tarlock

All Faculty Scholarship

The 1909 Boundary Waters Treaty (Treaty) is a model of, international water resources cooperation because it provides a permanent dispute mechanism, the six member International Joint Commission (IJC). Thus, both Canada and the United States have much to celebrate on the 100th anniversary of the Treaty. However, the most interesting aspect of the Treaty is the regime's ability to evolve through state practice beyond its original dispute resolution function, despite the inconsistent support for IJC involvement in transboundary water issues of the United States. The Treaty has been severely criticized by governments and non-governmental organizations (NGOs), especially in, Canada, for …

Vol. 25, No. 4, Paul R. Klenck

The Illinois Public Employee Relations Report

Contents:

Caught in the Web: On and Off-Duty Use of Computers, by Paul R. Klenck

Recent Developments

Further References, compiled by Yoo-Seong Song

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

The Intra-Enterprise Conspiracy Doctrine In American Needle Inc. V. National Football League: Antitrust Law Continues Its Path Toward Rationality, John O. Gunderson

Seventh Circuit Review

In American Needle Inc. v. National Football League, the Seventh Circuit was presented with the question of whether the National Football League and its affiliates should be held liable for a violation of the Sherman Act as a result of the league’s exclusive apparel licensing contract with Reebok. This article traces the evolution of the Supreme Court’s intra-enterprise conspiracy doctrine, which stated that even a parent company and its wholly owned subsidiary could conspire in such a way as to invoke the Sherman Act. The intra-enterprise conspiracy doctrine was overturned in Copperweld Corp. v. Independence Tube Corp. in …

Just A Bunch Of Fusspots And Nitpickers? That Pretty Much Sums It Up, Patrick D. Austermuehle

Seventh Circuit Review

The Seventh Circuit has a reputation for being harshly critical of attorneys who fail to follow the court’s procedural rules. Whether by sanction, written opinion, or oral rebuke, the attorney who fails to abide by the court’s rules can be sure of some disciplinary action. In Smoot v. Mazda Motors, the court asked whether the judges responsible for the strict enforcement of these rules are simply being “fusspots and nitpickers.”

This Note will address the court’s question through an empirical survey of the manner and frequency by which attorneys are disciplined for failing to follow the court’s rules. The …

Let's Get It Straight: The Effect Of Fehribach, The Ha2003 Liquidating Trust, And Joyce On A Debtor's Pre-Bankruptcy Professionals And Where To Go From Here, Jamie L. Johnson

Seventh Circuit Review

The Seventh Circuit has recently decided a trilogy of cases in which stockholders or creditors attempted to hold a business’s professionals—such as financial advisors and investment bankers—liable for the losses they suffered as a result of the business’s bankruptcy or financial demise. In all three of the cases, Fehribach v. Ernst & Young LLP, The HA2003 Liquidating Trust v. Credit Suisse Securities (USA) LLC, and Joyce v. Morgan Stanley & Co., the Seventh Circuit declined to hold the professionals liable, thereby eliminating a potential “deep pocket” for the creditors or stockholders. The outcomes of these cases were …

Analyzing A Pretrial Detainee's § 1983 Claims Under The Deliberate Indifference Standard Amounts To Punishment Of The Detainee, Leslie B. Elkins

Seventh Circuit Review

While the Eighth Amendment holds that a convicted inmate may be punished if that punishment is not “cruel and unusual,” due process requires that a pretrial detainee not be punished at all. In 1979, the Supreme Court declared that the rights of a pretrial detainee are “at least as great” as those afforded a convicted prisoner. The Seventh Circuit’s recent decision Klebanowski v. Sheahan illustrates the modern trend of using the same “deliberate indifference” standard used to analyze convicted prisoners’ § 1983 claims when analyzing pretrial detainees’ § 1983 claims. By scrutinizing the way modern courts assess pretrial detainees’ § …

Welcome To The Family: A New Class Of Cognizable Claims Under The Pregnancy Discrimination Act, Teresa A. Minnich

Seventh Circuit Review

In its recent decision Hall v. Nalco, the Seventh Circuit became the first Federal Circuit Court of Appeals to recognize a Title VII claim arising from adverse employment action following from a woman’s pursuit of in vitro fertilization, a type of infertility treatment. The Seventh Circuit’s decision creates a possible conflict with the Eighth and Second Circuits, which have both refused to recognize a cognizable Title VII claim where an employer excludes infertility treatments from insurance benefits plans. Furthermore, the Seventh Circuit’s reasoning articulates a murky distinction between childbearing capacity and fertility—although discrimination based on childbearing capacity violates Title …

License To Kill (The Dream Of Fair Housing): How The Seventh Circuit In Craigslist Gave Websites A Free Pass To Publish Discriminatory Housing Advertisements, Joseph J. Opron Iii

Seventh Circuit Review

In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., the Seventh Circuit held that Craigslist, Inc., could not be held liable under the Fair Housing Act’s ban on discriminatory advertisements for over 120 discriminatory housing advertisements complained about by the Chicago Lawyers’ Committee that were posted on Craigslist’s website. The court held that although newspapers and virtually every other publishing medium are consistently found liable under the Fair Housing Act’s ban on discriminatory advertisements, interactive computer service providers, such as Craigslist, are afforded civil immunity as a publishers or speakers of third-party content under the …

Policing Thought: United States V. Khattab And The Mens Rea Requirement Of 21 U.S.C. § 841, Anne M. Walker

Seventh Circuit Review

In United States v. Khattab, the Seventh Circuit identified a split between the circuits as to the mens rea required by the statute that criminalizes possessing or distributing precursor chemicals to illegal drugs. The relevant mens rea is “knowingly, or having reasonable cause to believe[.]” While the Tenth Circuit interprets “having reasonable cause to believe” to mean that a defendant must have something close to actual subjective knowledge that a chemical will be used to manufacture methamphetamines, the Eighth, Ninth, and Eleventh Circuits interpret “having reasonable cause to believe,” to mean that an objective standard can be applied. The …

Unraveling Tinker: The Seventh Circuit Leaves Student Speech Hanging By A Thread, Marcia E. Powers

Seventh Circuit Review

In the bedrock student speech case Tinker v. Des Moines Independent School District, the Supreme Court ruled that students do not shed their First Amendment rights at the schoolhouse gate and that a school cannot prohibit student speech absent a “substantial disruption.” The Supreme Court defined “substantial disruption” as speech that “materially and substantially disrupt[s] the work and discipline of school.” In 2008, the Seventh Circuit adopted a new definition of “substantial disruption” in Nuxoll v. Indian Prairie School District No. 204, a case where a student challenged his school’s prohibition of the t-shirt slogan “Be Happy, Not …

Patentable Subject Matter Requirements: An Evaluation Of Proposed Exclusions To India's Patent Law In Light Of India's Obligations Under The Trips Agreement And Options For India, Rajnish Kumar Rai

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Mixtape Dj's Drama: An Argument For Preemption Of Georgia's Unauthorized Reproduction Law, Jennifer Geller

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Reexamining The Functions Of Trademark Law, Mohammad Amin Naser

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Snapshot Of An Industry: The Biotechnology Sector And The Judicial Misgivings Of A General Court, Mike Rothwell

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Perfect 10 V. Visa, Mastercard, Et Al.: A Full Frontal Assault On Copyright Enforcement In Digital Media Or A Slippery Slope Diverted?, Bryan V. Swatt, Pamela C. Laucella Ph.D., Ryan M. Rodenberg J.D.

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Weak Overseas Protection For American Software Patents: The Need For A Congressional Response To Microsoft Corp. V. At & T Corp., Erika Danielle Norman

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Happiness And Punishment, Christopher J. Buccafusco, John Bronsteen, Jonathan S. Masur

All Faculty Scholarship

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Water Security, Fear Mitigation And International Water Law (Symposium), A. Dan Tarlock

All Faculty Scholarship

Water lawyers, courts, and others in the water community are fond of quoting the quip attributed to Mark Twain, "whiskey is for drinking and water is for fighting over." Not only is there no evidence that Twain ever uttered these words, but the quote has taken on a life of its own which grossly distorts the nature of water competition disputes, especially state to state competition. Both whiskey and water are for human benefit and exist in sufficient quantities throughout the world to satisfy present and future demand. Meeting these demands will be challenging because water must be managed to …

Vol. 25, No. 3, Susan J. Willenborg

The Illinois Public Employee Relations Report

Contents:

Labor Relations Issues in the Public Sector Electronic Workplace, by Susan J. Willenborg

Recent Developments

Further References, compiled by Yoo-Seong Song

Bionormativity And The Construction Of Parenthood, Katharine K. Baker

All Faculty Scholarship

This piece explores the relationship between legal and biological parenthood. It examines how neither history, nor evolutionary biology nor moral philosophy dictate a legal regime in which parenthood must be based on biological connection, but that attraction to a biological (or “bionormative”) regime remains strong. In explaining why, it suggests that much of what attracts people to bionormativity is not biology itself, but the way in which a biological regime constructs parenthood as a private, exclusive and binary enterprise. It is these ancillary qualities of bionormativity that people may care the most about. Today, a variety of forces put pressure …

Residential Protectionism And The Legal Mythology Of Home, Stephanie M. Stern

All Faculty Scholarship

Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such …

The Decline Of Traditional Pensions, The Impact Of The Pension Protection Act Of 2006, And The Future Of America's Defined-Benefit Pension System, Joshua Gad-Harf

Chicago-Kent Law Review

Congress passed the Pension Protection Act of 2006 to provide economic security for millions of Americans dependent on traditional defined-benefit pension plans, plans where an employer has promised to pay for the retirement of its employees. The bill was necessitated by the many employers who had terminated their plans both inside and outside of bankruptcy protection. This note will discuss the history of the defined-benefit pension system, the ways these plans can be terminated, and the problems these terminations pose for employers, employees, and the American taxpayers. It will argue that the Act and its exceptions for those in the …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Introduction To Recalling Vico's Lament: The Role Of Prudence And Rhetoric In Law And Legal Education, Francis J. Mootz Iii

Chicago-Kent Law Review

No abstract provided.

Vichian Moral Philosophy: Prudence As Jurisprudence, Donald Phillip Verene

Chicago-Kent Law Review

Vico discerned in Descartes' method for conducting right reasoning in the sciences a new and completely modern conception of human knowledge. This conception excludes those fields of study that the ancients believed to be the basis of civil wisdom, namely, eloquence or rhetoric and jurisprudence or law. Vico reminds us that what philosophy was for the Greeks, jurisprudence was for the Romans. In accordance with the Digest, Vico held that Roman law is civil wisdom itself: all that is necessary for proper human conduct is specified in the law. The law itself must be reasonable and just. The law, …

Law And Politics As Play, Lief H. Carter

Chicago-Kent Law Review

Liberal theory fails to cope effectively with the common human tendency, under certain conditions, to brutalize other humans. Liberal theory does not adequately accommodate the reality that humans contest concepts of rights, justice, and truth. The necessarily contextual, contested, and contingent character of substantive liberal principles necessarily prevents them, qua principles, from effectively inhibiting human brutality. Liberal theory also does not take adequate account of the passionate and non-rational character of the human animal. Giambattista Vico's remarkably prescient and comprehensive eighteenth century vision of the human condition anticipates these two barriers to achieving liberalism's pacific political and social vision. Vico …

Labor Provisions In Trade Agreements: From The Naalc To Now, Frank H. Bieszczat

Chicago-Kent Law Review

Globalization holds the promise of bringing employment and wealth to historically underdeveloped areas. Much of the enthusiasm, though, has been dampened by concerns of low wages and poor working conditions. These concerns have resulted in the inclusion of labor provisions in American free trade agreements, including the inclusion of the North American Agreement on Labor Cooperation (NAALC) as a side agreement to NAFTA. This note argues the labor provisions found in these trade agreements fail to achieve the United States' stated goal of using free trade agreements as vehicles to improve labor conditions globally. Too much responsibility is placed on …

On The (Legal) Study Methods Of Our Time: Vico Redux, Marianne Constable

Chicago-Kent Law Review

This essay draws on the form and spirit of Vico's On the Study Methods of Our Time to comment on intellectual and institutional approaches to U.S. legal studies today. It compares rhetoric to the many disciplines—philosophy, economics, sociology, political science, anthropology, poetry, and history—that take law as their subject matter. It argues that law is only partly understood by those who characterize it as command or as morality, as coercive system or as system of rules. It is only partly understood by those who reject law-on-the-books in favor of the empirical study of social behavior. It argues instead that attending …