Law Commons^™

Italian Perspective On The Importance Of Geographical Indications And Protected Designation Of Origin Status For Parmigiano-Reggiano Cheese, Margherita Corrado

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Blockchain Receipts: Patentability And Admissibility In Court, Angela Guo

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Patentability Of The Crispr-Cas9 Genome Editing Tool, Deborah Ku

Chicago-Kent Journal of Intellectual Property

The biotechnology sector is rapidly changing with the increase in technological advancements. 1 The laws governing patent protection, specifically the laws governing patent eligibility, have also changed to adapt to these innovations.2 This paper focuses on the CRISPR-Cas9 technology, a genome editing tool that is changing the field of genetic engineering.3 As of November 2016, the U.S. Patent and Trademark Office has issued 42 patents on the CRISPR-Cas9 technology.4 This paper addresses the issue of whether patents claiming the core CRISPR-Cas9 technology can survive a 35 U.S.C. §101 (“§101”) subject matter eligibility challenge. The paper concludes that the CRISPR-Cas9 technology …

When Copyright Is Not Enough: Deconstructing Why, As The Modern Music Industry Takes, Musicians Continue To Make, Glenton Davis

Chicago-Kent Journal of Intellectual Property

No abstract provided.

How Much Has The Supreme Court Changed Patent Law, Paul Gugliuzza

Chicago-Kent Journal of Intellectual Property

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

All Faculty Scholarship

What type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions.

Ip Law Post-Brexit, Graeme Dinwoodie, Richard Arnold, Lionel Bently, Estelle Derclaye

All Faculty Scholarship

No abstract provided.

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

All Faculty Scholarship

In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …

Table Of Contents

Seventh Circuit Review

No abstract provided.

Plain Error Review Is Just Plain Confusing: How The Confused State Of Plain Error Review Led The Seventh Circuit To Get It Wrong, April Ramirez

Seventh Circuit Review

Normally, if a defendant fails to make a timely objection to a perceived error during trial, he forfeits his right to appeal the error. Federal Rule of Criminal Procedure 52(b) however, allows for an exception to this general rule. Rule 52(b) is a codification of a common law standard which allowed a court to address an error not timely objected to. This type of appellate review is known as plain error review. The original standard, which Rule 52(b) is based on came from United States v. Atkinson. The United States Supreme Court in Atkinson stated that courts, in the public …

Reasonable Response: The Achilles' Heel Of The Seventh Circuit's "Deliberate Indifference" Analysis, Meaghan A. Sweeney

Seventh Circuit Review

Prisoners who believe their constitutional rights were violated through deficient medical care can pursue a cause of action under 42 U.S.C. § 1983. To prevail on this claim, the prisoner must show that a medical provider acted with deliberate indifference towards a serious medical condition. Ordinary medical negligence is not a constitutional claim simply because the victim is a prisoner. Yet, circuits are split on exactly what physician behavior constitutes deliberate indifference. Courts have given varying degrees of deference to a physician's case-specific medical determination. Courts debate whether palliative care—relieving pain without an effort to cure—is enough; and whether constitutionalizing …

Married On Saturday, Fired On Monday: The Seventh Circuit Attempts To Navigate Lgbt Rights After Obergefell, Symone D. Shinton

Seventh Circuit Review

Title VII of the Civil Rights Act was not enacted to protect the LGBT community and has never been consistently enforced to prohibit sexual orientation discrimination. Although some courts have stretched to include protections for the LGBT community under this statute, that federal law fails to protect the LGBT community from workplace discrimination has largely been taken for granted.

But last summer the Supreme Court of the United States held that persons cannot be denied the fundamental right to marry merely because they are not heterosexual. And so the tension occurred: a same-sex couple may marry on Saturday, but their …

Lewis'S Shifting ConcepcionS: The Seventh Circuit's Struggle In Applying Class Action Preemption In Employment Contracts, Matthew Hamielec

Seventh Circuit Review

Class actions and arbitrations have has existed since the United States' nascence. Since the mid-twentieth century, both Congress, through statutes like the Federal Arbitration Act ("FAA"), and the Supreme Court, in interpreting such statutes as favoring arbitration, have fostered arbitration's growth. While businesses incorporated arbitration provisions into various contracts thinking they would arbitrate with claimants individually, plaintiffs' attorneys pushed for courts' allowance of class arbitration, a class proceeding conducted within an arbitration's confines. Corporations litigated class arbitrations' legitimacy; their efforts culminated in American Express Co. v. Italian Colors Restaurant, where a divided Supreme Court upheld individual arbitration provisions in …

Storming The Persian Gates: The Seventh Circuit Denies Attachment To Iranian Antiquities, Claire E. Stephens

Seventh Circuit Review

When an American citizen is injured in a terrorist attack on foreign soil, the victim has a limited ability to sue a foreign state in the United States. Even more limited is the victim's ability to execute a judgment against the foreign state. The Foreign Sovereign Immunities Act permits plaintiffs to execute a judgment against a foreign state only in limited and explicitly stated circumstances.

In Rubin v. Islamic Republic of Iran, the Seventh Circuit considered such a claim. The plaintiffs, seven American victims of a Hamas terrorist attack in Israel, sought to attach Iranian antiquities located in the …

The Seventh Circuit Justifies Lifetime Gps Monitoring By Calling It Prevention, Andrea R. Torres

Seventh Circuit Review

In 2006, the Wisconsin Legislature enacted a law requiring the lifetime GPS monitoring of serious sex offenders to discourage recidivism. Sexual abuse has devastating consequences on a child, and the crime often goes unreported because children tend to be afraid of their abusers, worried about their parents' reactions, or unable to describe the events. Despite having the best interests of children in mind, these GPS monitoring laws have the potential to infringe upon the constitutional rights of offenders.

In Belleau v. Wall, the Seventh Circuit reviewed Fourth Amendment and Ex Post Facto Clause implications of this statute. Michael Belleau …

Erisa Remedies: Rethinking Indemnification And Contribution For Co-Fiduciaries, Nicholas L. Debruyne

Seventh Circuit Review

The Employee Retirement Income Security Act ("ERISA") is a federal law that protects participants of employee benefit plans. Congress attempted to achieve this by assigning duties to co-fiduciaries that are responsible for managing plan assets. Despite allocating a variety of obligations among co-fiduciaries, ERISA does not specify whether co-fiduciaries can seek contribution or indemnification as an equitable remedy. To date, the circuit courts are split as to whether such equitable remedies should be implied under ERISA.

In Chesemore v. Fenkell, the Seventh Circuit incorrectly held that ERISA authorized the district court to provide contribution or indemnification to co-fiduciaries. The …

Social Cost Of Carbon: Can We Afford It?, Kita

Seventh Circuit Review

Environmental regulations that are passed by governmental agencies must ensure that the benefit of the regulation outweighs the burden. The failure for the benefit to outweigh the burden will result in the nullification of environmentally beneficial regulations. The methodology to measure the environmental impact of a regulation is difficult to understand and in some cases highly controversial. One example of this is the use of the social cost of carbon. The social cost of carbon is used to measure carbon reduction. The use of the social cost of carbon can help regulations succeed cost-benefit scrutiny, which would invalidate the regulation. …

Horsing Around With Dobson And Chevron: Tax Deference In Roberts V. Commissioner, Megan Heinz

Seventh Circuit Review

In the late 1990's and 2000's, Merrill C. Roberts of Indiana ventured into horse racing. Eventually he chose to deduct losses associated with his horse racing as "ordinary and necessary business expenses." The IRS issued a notice of deficiency to Roberts, contending that he was liable for taxes and penalties for those years because he was engaged in horseracing as a hobby rather than a business. He therefore could not deduct expenses associated with the activity under Section 183 of the Internal Revenue Code.

The Tax Court analyzed the case using factors set forth in Treasury Regulation Section 1.183-2, which …

Rights Of Custody: Results May Vary, David E. Braden

Seventh Circuit Review

The Hague Convention on the Civil Aspects of International Child Abduction (Convention) protects parents with primary custody rights from parental abduction or retention of their children in another country. However, as more couples in the United States forgo marriage but continue having children, these couples-who often prefer informal parenting arrangements-do not often obtain court orders that identify their custody or visitation rights. Yet if an unmarried parent relocated to another country without the other parent's consent, the parties would have to rely on the state's default custody rules to determine where the custody battle should ensue.

For example, Mexican jurisdictions …

Selling The Footlong Short: How Consumers Inch Toward Satisfaction In Costly Food Class Action Litigation, Erica A. Burgos

Seventh Circuit Review

Food and beverage class action litigation has increased tremendously over the last five years. While many have ridiculed these lawsuits as ploys to extort money from wealthy food producers, plaintiff consumers maintain that the surge of food litigation suits evidence their growing desire for transparency. Many food-based class actions allege companies are purposefully deceiving consumers with misleading marketing campaigns. Defendants argue that a reasonable consumer should know better than to take their advertising at face value. Even still, defendants are often eager to resolve conflicts without admitting liability and, in turn, rush to settle the matter. Courts are then faced …

Modifying Amateurism: A Performance-Based Solution To Compensating Student–Athletes For Licensing Their Names, Images, And Likenesses, Chaz Gross

Chicago-Kent Journal of Intellectual Property

Amateurism is evolving and the NCAA is paying for it. With the NCAA’s focus set on preserving amateurism, it prohibited student–athlete compensation for any activity related to sports. However, college athletics are a lucrative business that generates its primary revenue from licensing Division I men’s basketball and FBS football players’ names, images, and likenesses. After years of criticism for its rules and regulations, the NCAA faced antitrust scrutiny from both former and current student–athletes. In 2015, the U.S. Court of Appeals for the Ninth Circuit held that the NCAA’s restrictions on student–athlete compensation violated the Sherman Antitrust Act. While the …

How Can The Supreme Court Not “Understand” Patent Law?, Gregory Reilly

Chicago-Kent Journal of Intellectual Property

The Supreme Court does understand patent law. This invited Essay responds to Federal Circuit Judge Dyk’s remarks at the Chicago-Kent Supreme Court IP Review, in particular, his observation that the patent “bar and the academy have expressed skepticism that the Supreme Court understands patent law well enough to make the governing rules” (a view Judge Dyk did not endorse). The idea that the Supreme Court does not understand the law of patents is implausible. Even more generous interpretations of this criticism – that the Supreme Court insufficiently understands innovation policy, insufficiently understands the patent system that Congress desired in creating …

Response To Judge Timothy B. Dyk, Donald R. Dunner

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook

Chicago-Kent Journal of Intellectual Property

This essay is a response to Hon. Timothy B. Dyk, Thoughts on the Relationship Between the Supreme Court and the Federal Circuit, 16 CHI.-KENT J. OF INTELL. PROP. 67 (2016). In it, I address the reasons for the Supreme Court's engagement with patent law. In other words, is the Court interested in patent law itself, or is there something about the Federal Circuit as an institution that has garnered the Court's gaze. I conclude it is a combination of the two. The Court is concerned with certain aspects of patent doctrine, but it is also concerned with the Federal Circuit, …

A General Approach For Predicting The Behavior Of The Supreme Court Of The United States, Daniel Katz

All Faculty Scholarship

Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time-evolving random forest classifier that leverages unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve …

Vol. 34, No. 2, Taylor E. Muzzy

The Illinois Public Employee Relations Report

Contents:

LGBT Rights: Gender Identity and Sexual Orientation in the Workplace, by Taylor E. Muzzy

Recent Developments

Against Gay Potemkin Villages: Title Vii And Sexual Orientation Discrimination, Anthony Michael Kreis

All Faculty Scholarship

Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member …

Harnessing Legal Complexity, Daniel Katz, J. Ruhl, M Bommarito

All Faculty Scholarship

No abstract provided.

Post-Trial Plea Bargaining And Predictive Analytics In Public Law, Harold Krent

All Faculty Scholarship

Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the criminal defendant can benefit—the state saves resources while the defendant gets off death row.Gershowitz’s article, therefore, affords a window into the increasing use of predictive analytics in deciding whether to bring or resolve litigation. Sifting through data on all prior capital cases can yield clues …

Stages Of Constitutional Grief: Democratic Constitutionalism And The Marriage Revolution, Anthony Michael Kreis

All Faculty Scholarship

Do courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change …