Law Commons^™

From Borden To Billing: Identifying A Uniform Approach To Implied Antitrust Immunity From The Supreme Court's Precedents, Jacob L. Kahn

Chicago-Kent Law Review

The doctrine of implied antitrust immunity allows courts to reconcile two inconsistent congressional decrees: (1) that unrestrained competition—the primary goal of the antitrust laws—will produce the most efficient results in any marketplace; and (2) that artificial restraints on competition—as achieved through federal regulation—are necessary to ensure the proper functioning of certain industries. Thus, even when Congress has not expressly exempted a defendant's conduct from the antitrust laws, the fact that the conduct occurred in a regulated industry may sometimes be enough to justify an implied exemption. Due to the importance of the antitrust laws, however, the Supreme Court traditionally has …

Vico's Principle Of Sensus Communis And Forensic Eloquence, Thora Ilin Bayer

Chicago-Kent Law Review

As professor of Latin eloquence at the University of Naples, Vico instructed young students in the principles of rhetoric joined with the principles of Roman jurisprudence. Vico understood the art of rhetoric as based in the art of topics and the art of memory. The places of memory reside in the sensus communis, which is the treasure-house of the images and meanings that underlie the life of all nations. Vico, like Shaftesbury, defines sensus communis as "communal sense," the shared sensibilities that exist among a given people, and ultimately among the whole human race. These common sensibilities are the …

Sublime Jurisprudence: On The Ethical Education Of The Legal Imagination In Our Time, Richard K. Sherwin

Chicago-Kent Law Review

The broad dissemination of digital communication technologies is raising disturbing questions about the nature of truth as representation. This epistemological crisis shares an uncanny affinity with the crisis of representation that lay at the heart of the baroque era during the seventeenth century in Europe. The resolution of that crisis, through the work of Descartes and others, came on the heels of a philosophical shift from the image to the sign. However, as Vico presciently realized 300 years ago, Descartes' semiotic model, together with the totalizing rational method that accompanies it, are ill-suited to civic flourishing. Today, signifiers shorn of …

Vico's "Ingenious Method" And Legal Education, Francis J. Mootz Iii

Chicago-Kent Law Review

Recent calls to reform legal education have culminated in the 2007 Carnegie Report, which is attracting substantial attention and promises to have tremendous influence on American law schools. In this article I survey these calls for reform and argue that they should be put into a broader historical, philosophical and ethical perspective. Three hundred years ago the Italian humanist, Giambattista Vico, delivered his famous oration that serves as the focal point for this symposium, On the Study Methods of Our Time. This oration lamented the rise of Cartesian critical philosophy at the expense of the cultivation of imagination, prudence, …

Reading Vico For The School Of Law, Willem J. Witteveen

Chicago-Kent Law Review

In his oration On the Study Methods of Our Time, Giambattista Vico conceived of the jurist as a person well schooled in law and in rhetoric, able to perform as an orator and a statesman. This ideal contrasts markedly with the modern conception of the lawyer as primarily a rule-technician and a judge. Studying the educational program unfolded by Vico, it becomes apparent that the arts and sciences of oratory, law and philosophy for him converge in the role model of the prudent legislator. This role model has become virtually meaningless in the culture of modem law through an …

Rhetoric And Its Abuses: How To Oppose Liberal Democracy While Speaking Its Language, Guy Haarscher

Chicago-Kent Law Review

I try to analyze the rhetoric that is being used in contemporary debates concerning the defense of the values of liberal democracy. My main point is the following: nowadays, human rights and liberal democracy constitute, as it were, the fundamental values of the political sphere. But, as we know, people very often only pay lip service to these political values. Schematically speaking, there are two opposed ways of trying to evade the constraints of human rights and the values of liberal democracy. I shall call the first one the "frontal attack": the "enemy" explicitly defends values that are radically at …

Impala V. Commission: Changing The Tune Of European Competition Law, Elena Vranas-Liveris

Chicago-Kent Law Review

On July 13, 2006, the European Union's Court of First Instance made history in Impala v. Commission, a case which annulled the 2004 decision of the European Commission that cleared the merger between music industry majors Sony and Bertelsmann AG. This was the first time that the Court of First Instance reversed a Commission merger clearance decision. This comment examines the case's internal ramifications for the EU, as well as global ramifications for merger control law generally. This comment concludes that Impala marks a major structural change within the EU. By establishing itself as an authority in competition law, …

Coding Complexity: Bringing Law To The Empirical Analysis Of The Supreme Court, Carolyn Shapiro

All Faculty Scholarship

In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts.

Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Preface, Justin Nemunaitis

Seventh Circuit Review

No abstract provided.

Ding, Dong, Conley ’S Dead: Bell Atlantic Changes The Federal Pleading Standard, Brett A. Saltzman

Seventh Circuit Review

In EEOC v. Concentra Health Services and Airborne Beepers & Video, Inc. v. AT & T Mobility, LLC, the Seventh Circuit set out to interpret the new federal pleading standard espoused by the Supreme Court in the recent landmark case of Bell Atlantic Corp. v. Twombly. In so doing, the Seventh Circuit sought to determine what Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to plead in order to withstand a Rule 12(b)(6) motion to dismiss in the federal court system. Although it could have imparted some meaning into Bell Atlantic’s otherwise ambiguous requirement of “plausibility” in …

The Death Knell Tolls For Reparations In In Re African-American Slave Descendants Litigation, Christina E. Lutz

Seventh Circuit Review

The Seventh Circuit, in its recent decision In Re Slave Descendants Litigation, dismissed the claims of plaintiffs seeking disgorgement of the profits earned by Northern companies as a result of their illegal involvement in slavery. It is the latest in a long line of reparations cases dismissed by courts for various reasons, including the statute of limitations. This Comment addresses the tolling doctrines the Seventh Circuit should have applied and questions the court’s reasoning with respect to the expiration of the statute of limitations. In doing so, it positions Slave Descendants within the history of reparations by recounting the …

Sweet Result In Savory: How The Seventh Circuit Took The Correct Approach To Post-Conviction Access To Dna Evidence In Savory V. Lyons, Jamie T. Newton

Seventh Circuit Review

Progress in the field of DNA testing over the last few decades has resulted in increasingly accurate results. Often this means that DNA evidence found to be inconclusive years ago may prove exculpatory to a prisoner if subjected to today’s more advanced testing. Prisoners may potentially gain access to this evidence through two methods: 1) a writ of habeas corpus; or 2) a § 1983 action. While both approaches can yield the same results, a writ of habeas corpus is subject to several procedural requirements which can delay a prisoner’s access to testing, making a § 1983 action a potentially …

The Seventh Circuit Steps Up On Clenaup Of Hazardous Waste, Esther Wu

Seventh Circuit Review

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is Congress' vehicle for both encouraging timely cleanup of hazardous waste sites and placing the costs of cleanup on those responsible for creating or maintaining the hazardous condition. Most courts have utilized the “remedial canon” of statutory construction to broadly construe the former goal of CERCLA to the detriment of the latter. In contrast, the Seventh Circuit employs the “public interest” theory instead of the “remedial canon” of statutory interpretation, and strikes a perfect balance between the two competing goals of CERCLA.

Some courts apply “strict liability” in the context of …

Caution! Government Intrusion May Be Closer Than It Appears: The Seventh Circuit Considers Gps Devices Under The Fourth Amendment, Catherine A. Stephens

Seventh Circuit Review

The Fourth Amendment provides protection for individuals from unreasonable searches and seizures of their persons, property, and effects. However, as technology advances and the need for security in this country increases, individuals’ Fourth Amendment rights are in danger. Global Positioning System (“GPS”) tracking devices can now be easily installed on anyone’s car. The GPS device can then track that person’s movement for an extended period of time through the use of sophisticated computer and satellite technology. Under the current state of the law, the police are able to place these GPS devices on cars or possessions without reasonable suspicion, probable …

Lost In Cyberspace: A Call For New Legislation To Fill The Black Hole In Information Privacy Law Following Pisciotta V. Old National Bancorp, Elena N. Vranas-Liveris

Seventh Circuit Review

This Note discusses Pisciotta v. Old National Bancorp, a case decided by the Seventh Circuit, which dealt with the following issue for the first time: whether the costs of credit monitoring spent by consumers whose personal information was wrongfully accessed through a database security breach but who were not victims of identity theft or fraud are compensable damages and thus recoverable under a negligence or breach of contract action against the database owner. The Seventh Circuit was rather definitive in its ruling that the plaintiffs had not suffered the requisite harm to place liability on the database owner, thus …

(Trade) Secrets, Secrets Are No Fun—Especially When Disclosed Through Foia Requests To Everyone, Daniel B. Goldman

Seventh Circuit Review

While the Freedom of Information Act (“FOIA”) contains a provision exempting trade secrets from public information requests, FOIA was enacted to serve policies essentially antithetical to those of trade secrets—allowing individuals to access records collected by governmental agencies. The FOIA trade secret exemption is discretionary, allowing an agency, rather than a party submitting information to the government, to determine what constitutes a trade secret. Consequently, government agencies often disclose information through FOIA requests that are considered to be trade secrets by the information’s owners. One such instance arose in the Seventh Circuit in Patriot Homes, Inc. v. Forest River Housing, …

Free Speech And Human Dignity, Steven J. Heyman

All Faculty Scholarship

No abstract provided.

Public Employee Speech, Categorical Balancing And Section 1983: A Critique Of Garcetti V. Ceballos, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Vol. 25, No. 2, Bruce C. Beal

The Illinois Public Employee Relations Report

Contents:

Survey of Recent Legislation Affecting Police Officers and Firefighters, by Bruce C. Beal

Recent Developments

Further References, compiled by Yoo-Seong Song

Before The Grand Rethinking: Five Things To Do Today With Payments Law And Ten Principles To Guide New Payments Products And New Payments Law, Gail Hillebrand

Chicago-Kent Law Review

This article describes the incomplete consumer protection and illogical results now occurring from the application of current federal consumer protection law to a broad variety of types of payments products used by individuals that were developed long after the relevant federal laws were written.

The lag in payments law has real impacts on consumers. The adverse consequences include the mistaken assumption of rights that do not exist,; individuals losing of control of their checking accounts; and that the consumer's rights may depend upon the choices made by merchants, processors, and banks. Surprisingly, the most fiscally dangerous payment choice for an …

A Requiem For Sam's Bank, Ronald J. Mann

Chicago-Kent Law Review

This paper situates Wal-Mart's failed application to form a banking subsidiary in the context of payments policy. Generally, I argue that permitting Wal-Mart to have a bank would have a salutary effect on the relatively uncompetitive market for payment networks. The dominant position of Visa and MasterCard, in which payments are priced above cost to subsidize credit, inevitably will give way to a world in which payment services are priced at cost, or even below cost as a loss-leader to attract customers to other goods and services. Entry into this market by Wal-Mart would be likely to spur more robust …

The Fda And Nano: Big Problems With Tiny Technology, Jessica K. Fender

Chicago-Kent Law Review

Nanotechnology-related products and materials are becoming increasingly prevalent in our society. In the U.S., much of the burden for regulating these products falls upon the Food and Drug Administration (FDA). Thus far, the FDA has insisted that its present regulatory scheme is adequate to the task of analyzing nanotechnology products. Other administrative agencies, however, have recognized the special properties that can attach to nanosized materials. For example, the U.S. Patent and Trademark Office (USPTO) has created a special cross-reference classification: Class 977. By cross-referencing an application or a patent under Class 977, the USPTO provides strong evidence that the invention …

The Role Of Private Sector Payment Rules And A Proposed Approach For Evaluating Future Changes To Payments Law, Robert G. Ballen, Thomas A. Fox

Chicago-Kent Law Review

Private sector payment organizations should continue to play the primary role in establishing rights and responsibilities for payment transactions between their participating financial institutions, provided that their rules are consistent with customer protections established by federal and state governmental authorities for the customer-financial institution relationship. Current payments law structure, relying on a combination of private sector rules, baseline statutory consumer protections, and (in the case of check payments) a somewhat variable uniform check collection statute, has shown remarkable flexibility in facilitating and responding to the unprecedented scope and pace of change that has occurred in the retail payments world over …

Donald Rapson—A Remembrance, Steven L. Harris

Chicago-Kent Law Review

No abstract provided.

Introduction To Rethinking Payments Law, Steven L. Harris

Chicago-Kent Law Review

No abstract provided.

Commentary: Where Is The Economic Analysis Of Payment Law?, Joseph H. Sommer

Chicago-Kent Law Review

Modem payment law began precisely a quarter of a millennium ago, when Lord Mansfield decided Miller v. Race. After 250 years, we know little more than Mansfield, even with the analytic power of modern neoclassical microeconomics. Many of the simplest questions have no easy answer: What is a payment? (The U.C.C. has no definition.) What is payment finality, and why is it important? (There is no consensus, especially because payment finality was law long before bankers discovered its connection to systemic risk.) What is the normative rationale of the clearing and settlement rules in the U.C.C.? (Again, no consensus, …

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Chicago-Kent Law Review

Contract is predicated on agreement, or so the story goes. Of course, the reality of the modern bank-customer transaction is not so straightforward. In those transactions, the contract law is confronted with an ostensible dilemma: Should the law find its goal in the efficiency to be gained by binding customers to terms which they neither read nor understand? Or should the law instead focus on classical conceptions of bargain and agreement, and refuse to enforce contract terms that do not exhibit these characteristics? Article 4 of the Uniform Commercial Code, which regulates bank-customer transactions, attempts to strike a balance between …

Is The Illinois Equity In Eminent Domain Act Truly Equitable?, Jedediah B. Forkner

Chicago-Kent Law Review

Since the Supreme Court approved of economic growth as a proper public use to support the exercise of eminent domain power to take privately-owned property in Kelo v. City of New London, state legislatures across the country have been reviewing and revising their eminent domain statutes. Private property owners have urged states to protect their rights by adopting a more restrictive interpretation of public use, while municipalities have argued that broad eminent domain powers allow the government to serve the best interest of the public in an efficient and cost effective manner. In Illinois, the state legislature attempted to …

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

Chicago-Kent Law Review

No abstract provided.