Law Commons^™

Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner

All Faculty Scholarship

Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

Depoliticizing Individual Criminal Responsibility, Bartram Brown

All Faculty Scholarship

No abstract provided.

Contextualizing Preemption, Mark D. Rosen

All Faculty Scholarship

No abstract provided.

Copyright And Free Expression: Engine Or Obstacle, Graeme Dinwoodie

All Faculty Scholarship

No abstract provided.

Weighing Judicial Independence Against Judicial Accountability: Do The Scales Of The International Criminal Court Balance?, Ronli Sifris

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Vol. 25, No. 1, Consuela A. Pinto

The Illinois Public Employee Relations Report

Contents:

Family Responsibilities Discrimination: The Next Frontier in Public Sector Employment Law, by Consuela A. Pinto

Recent Developments

Further References, compiled by Yoo-Seong Song

Erisa Federal Preemption Problem With A State-Based Solution: The Need For Regulatory Subdivision In Employee Benefits, Mariya Starchevsky

Louis Jackson National Student Writing Competition

No abstract provided.

Has The Flsa Failed To Adapt To The New Information And Service Economy? The Case Of Insurance Adjusters, Juliana Poindexter

Louis Jackson National Student Writing Competition

No abstract provided.

The Fifth Amendment Disclosure Obligations Of Government Employers When Interrogating Public Employees, Lindsay Niehaus

Louis Jackson National Student Writing Competition

No abstract provided.

Cases: Prosecutor V. Thomas Lubanga Dyilo (Update) & Prosecutor V. Germain Katanga, Moshe Zvi Marvit, Michelle Olson

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Case: Territorial And Maritime Dispute (Nicaragua V. Colombia), David Pustilnik

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Negotiated Justice And The Goals Of International Criminal Tribunal, Anna Petrig

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

The Caribbean Court Of Justice: An Institution Whose Time Has Come, Weston Eidson

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Case: Saadi V. United Kingdom, Gabriel Siehr

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Major "Minor" Progress Under The Third Pillar: Eu Institution Building In The Sharing Of Criminal Record Information, James B. Jacobs, Dimitra Blitsa

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

The Survival Of Customary Law In The Northern Mariana Islands, Elizabeth Barrett Ristroph

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M. C. Mirow

Chicago-Kent Law Review

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics. Sensitivity to …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Constitutional Transplants And The Mutation Effect, Horacio Spector

Chicago-Kent Law Review

This article is concerned with constitutional transplantation, that is, the borrowing of constitutional institutions and precedents from foreign jurisdictions. It pursues two main goals. First, it argues that the borrowing of constitutional texts can be successful over long periods of time, and that when the transplanted texts fail, this failure is not easily attributable to transplantation alone. Second, it introduces the notion of a "mutation effect" to the theoretical analyses of judicial transplants. By "mutation" of precedents, the author means the process of continuing to extend the scope of a holding, regardless of its factual basis, to cover situations not …

The Color Of Brazil: Law, Ethnic Fragmentation, And Economic Growth, Tade O. Okediji

Chicago-Kent Law Review

The influence of ethnic fragmentation on economic performance has been the subject of much scholarly inquiry in economics and political economics literature. Studies have shown that ethnic fragmentation has a distinct impact on the prospects for economic growth through its effect on government policies and in particular macroeconomic stabilization strategies. It has also become relevant in legal scholarship, especially with regard to developing antidiscrimination laws to ameliorate incessant conflict in plural societies. Accurate measurements of the scale or degree of ethnic fragmentation are important for determining sustainable economic development policies and legal policies for overall development planning. The multiple, complex, …

To Disclose Or Not To Disclose: Duty Of Candor Obligations Of The United States And Foreign Patent Offices, Gina M. Bicknell

Chicago-Kent Law Review

Many patent offices around the world have rigorous prior art disclosure requirements. U.S. patent applicants not only must meet each individual country's criteria for disclosure, but also must contend with allegations of inequitable conduct from patent infringers which may render their patents unenforceable. This article argues that the new prior art disclosure rules promulgated by the USPTO unfairly shift the burden of examining patent applications onto patent applicants, and create a situation ripe for allegations of inequitable conduct. This article also examines how other countries handle disclosure obligations, and recommends several alternative systems that would meet the USPTO's objectives of …

Ex-Post-Booker: Retroactive Application Of Federal Sentencing Guidelines, Christine M. Zievel

Chicago-Kent Law Review

In United States v. Booker, a dramatic decision handed down in early 2005, the Supreme Court attempted to cure Sixth Amendment issues by excising the mandatory provisions of the U.S. Sentencing Guidelines and changing the binding role of the Guidelines to advisory. For close to twenty years, federal circuit courts had used the Ex Post Facto Clause to prohibit sentencing judges from retroactively applying revisions of the federal Guidelines. However, after Booker's advisory mandate and the Guidelines' supposed loss of force in sentencing decisions, some circuits have now found that the same retroactive application no longer violates the …

The Investment Climate, Competition Policy, And Economic Development In Latin America, R. Shyam Khemani, Ana Carrasco-Martin

Chicago-Kent Law Review

The merits of fostering effective competition in the economy to encourage economic efficiency, consumer welfare, productivity, innovation, and attract investment have been increasingly and widely recognized by governments around the world. Relative to other regions, developing countries in Latin America have been at the forefront in adopting pro-competition measures such as deregulating industries, liberalizing trade and investment, and enacting competition (antitrust or antimonopoly) laws. However, the quality of the investment climate that determines the risks and transaction costs associated with investing and operating a business, as well as the implementation of competition law and policy, tend to vary widely across …

Implementing Competition Law And Policy In Latin America: The Role Of Technical Assistance, Ana Maria Alvarez, Pierre Horna

Chicago-Kent Law Review

Despite all the bottlenecks faced in implementing competition law and policies (CLP) in Latin America, several countries have been able to organize competition regimes and establish effective competition agencies. Experience has shown that the adage "no one size fits all" holds true; each country adheres to its own agenda. Therefore, technical assistance (TA) entails a bottom-up progressive approach and reflects national priorities. At the outset of implementing a CLP in developing countries, it is worth keeping in mind certain questions: Will the new regulation represent an additional burden to the already-charged institutional setting, or will it be an additional rule …

Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire A. Hill

Chicago-Kent Law Review

Latin American contract documentation used to be quite short, as is typical in civil law countries. Increasingly, it resembles U.S. contract documentation: long, detailed, and full of boilerplate. This commentary discusses this development, and considers what effect it will have on contracting practice in Latin America; it also considers some broader implications of international convergence in contracting practices.

I argue that the explanation can't be that U.S. contracting practices are superior. That explanation doesn't even work in the U.S., where parties and institutions are geared up to use U.S. practices and documentation. Indeed, most of the virtues of U.S.-style contracting …

Order Without (Enforceable) Law: Why Countries Enter Into Non-Enforceable Competition Policy Chapters In Free Trade Agreements, D. Daniel Sokol

Chicago-Kent Law Review

There has been an explosion in the past ten to fifteen years of bilateral and regional free trade agreements in Latin America (together, preferential free trade agreements or PTAs). The purpose of PTAs is to increase trade, regulatory, and investment liberalization. As trade liberalization requires more than just a reduction of tariffs, PTAs include "chapters" in a number of areas of domestic regulation. These chapters that address domestic regulation create binding commitments to liberalize domestic regulation that may impact foreign trade. Among chapters that address domestic regulation, many of the Latin American PTAs include a chapter on antitrust or competition …

Introduction To Law And Economic Development In Latin America: A Comparative Approach To Legal Reform, Thomas H. Hill

Chicago-Kent Law Review

No abstract provided.

Open Markets, Competitive Democracy, And Transparent And Reliable Legal Systems: The Three Legs Of Development, James R. Jones

Chicago-Kent Law Review

In the 1990s, reform swept through Latin America. Open markets replaced closed economies. Real democracy replaced one-party rule and rigged elections. For about half of the region's population, economic and political conditions improved—yet the gap between the rich and poor widened. The poor half received little or no tangible benefits from these economic and democratic reforms. This article argues that the most difficult and probably most important reform remains to be accomplished: the reform of the legal and regulatory systems throughout Latin America. Until that happens, dreams of first-world recognition and respectability will elude Latin nations.