Law Commons^™

"The Law Doesn't Work Like A Computer": Exploring Software Licensing Issues Faced By Legal Practitioners, Nathan Wintersgill, Trevor Stalnaker, Laura A. Heymann, Oscar Chaparro, Denys Poshyvanyk

Faculty Publications

Most modern software products incorporate open source components, which requires compliance with each component’s licenses. As noncompliance can lead to significant repercussions, organizations often seek advice from legal practitioners to maintain license compliance, address licensing issues, and manage the risks of noncompliance. While legal practitioners play a critical role in the process, little is known in the software engineering community about their experiences within the open source license compliance ecosystem. To fill this knowledge gap, a joint team of software engineering and legal researchers designed and conducted a survey with 30 legal practitioners and related occupations and then held 16 …

A Theory Of Genetic Dimensions In The Law, Ana Santos Rutschman, Yaniv Heled, Liza Vertinsky

Faculty Publications

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

New Vision, Old Model: How The Ftc Exaggerated Harms When Rejecting Business Justifications For Noncompetes, Alan J. Meese

Faculty Publications

The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the Commission has proposed banning all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act.

The Notice of Proposed Rulemaking (“NPRM”) articulating the Commission’s rationale found that NCAs reduce aggregate wages, harm traditionally recognized by the Rule of Reason. …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Constitutional Rights And Remedial Consistency, Katherine Mims Crocker

Faculty Publications

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and …

Inequitable Infrastructure: An Empirical Assessment Of Federalism, Climate Change, And Environmental Racism, Lev E. Breydo

Faculty Publications

This Article explains a critical, yet unexplored issue: How are some communities like Jackson—the 80% Black capital of Mississippi—often left without water or electricity, while their mostly white neighbors are not? The Article maps uncharted territory by interrogating the underlying causes of this disparity, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal …

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

"I Am Become Death, The Destroyer Of Worlds": Applying Strict Liability To Artificial Intelligence As An Abnormally Dangerous Activity, Renee Henson

Faculty Publications

Artificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally …

Contagion. Ftx, A Sector's Crisis & Crypto's Silent Victims, Lev E. Breydo

Faculty Publications

Late 2022 was crypto’s Minsky moment, characterized by wholesale sector collapse and over a dozen major bankruptcies, including FTX’s implosion. For millions of investors, it was the worst of all worlds, combining the frenetic contagion of 2008 with consumer protections most reminiscent of the Panic of 1907.

While the industry’s challenges are often attributed to the nature of crypto itself, the true root cause reflects a fundamental category error. This Article’s comprehensive market taxonomy identifies as the sector’s nexus of risk entities it terms “Crypto Platforms,” like FTX. Crypto Platforms are essentially financial institutions – a cauldron of externalities subject …

State Constitutional Limitations To Cities Taxing The Digital Economy, Lauren Shores Pelikan

Faculty Publications

The digital economy’s rapid evolution, most recently with the rise of artificial intelligence, demands a reevaluation of state constitutional limitations on local taxation of digital transactions. Citizens have long feared excessive or unfair tax burdens, hence the adoption of constitutional amendments that prohibit legislators from increasing taxes or imposing new taxes without a public vote. However, these constitutional limitations are now preventing cities from taxing digital transactions that are taking over the economy. This is a serious financial problem for cities whose traditional sources of tax revenue, such as sales taxes and property taxes, are dwindling due to the digitalizing …

Are Employee Noncompete Agreements Coercive? Why The Ftc's Wrong Answer Disqualifies It From Rulemaking (For Now), Alan J. Meese

Faculty Publications

The Federal Trade Commission recently proposed a rule banning nearly all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the Federal Trade Commission Act. The proposed rule reflects two complementary pillars of an aggressive new enforcement agenda championed by Commission Chair Lina Khan, a leading voice in the Neo-Brandeisian antitrust movement. First, such a rule depends on the assumption, rejected by most prior Commissions, that the Act empowers the Commission to issue legislative rules. Proceeding by rulemaking is essential, the Commission has said, to fight a “hyperconcentrated economy” that injures employees and consumers alike. Second, …

The Real Wrongs Of Icwa, James G. Dwyer

Faculty Publications

Haaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage …

Holding Aggressors Responsible For International Crimes: Implementing The Unequal Enforcement Doctrine, Nancy Amoury Combs

Faculty Publications

It is a fundamental tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party such as Russia — that illegally launches a war — benefits from all the same rights as a party such as Ukraine — that is forced to defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible because defenders should have more rights and fewer responsibilities than aggressors. Legal scholars continue to support the equal application doctrine, however, because they reasonably fear that applying different rules to …

The Precarious Art Of Classifying Facts, Allison Orr Larsen

Faculty Publications

In their terrific new article, Fact Stripping, Joseph Blocher and Brandon Garrett bring formidable expertise from their respective fields to tackle the inscrutable puzzle of appellate fact review.

[...]

In this short reply I will add to Blocher and Garrett’s illuminating work by exploring a foundational confusion their article exposes. I will first explain why classifying facts as either suitable for trial or not is a very fraught endeavor; I will then argue that this difficulty allows for significant manipulation and the risk of unprincipled application. Finally, I will nod to prior work and forecast future work where I …

Recruiting The Right Candidate, Cynthia Bassett

Faculty Publications

The market for hiring a law librarian has changed significantly over the last few years. Those on both sides of the equation are a little uncertain about the whole process, wondering when the job search should start, how much to expect in pay, and what aspects of a position are up for discussion. The challenge of a limited pipeline of law librarians requires new approaches to recruiting.

Employers And The Privatization Of Public Health, Sharona Hoffman

Faculty Publications

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism towards government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views.

Employers may be highly motivated to safeguard their workers’ …

No-Poach Agreements: An Overview Of Us, Eu, And National Case Law, Donald J. Polden

Faculty Publications

The United States, European Union, and many other international jurisdictions have antitrust and competition laws that seek to prevent anticompetitive conduct concerning labor and employment relationships. However, for many years these prohibitions on restraints of trade in labor markets and employment relationships were not routinely and rigorously enforced by those jurisdictions. The lack of governmental attention to these labor market practices has changed in important ways in recent years. Across many jurisdictions, we are now seeing more intense attention to conduct that suppresses wages of workers and their freedom of job mobility to other comparable positions. From an international perspective, …

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael M. O'Hear

Faculty Publications

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …

Symposium Introduction: The Effect Of Dobbs On Work Law, Nicole B. Porter

Faculty Publications

In March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities.

The Commerce Clause Doesn’T Override Rules Governing The Taxing Power, Erik M. Jensen

Faculty Publications

This article challenges the view that the commerce clause, including the foreign commerce part of that clause, provides authority for enacting taxes that don’t meet the explicit requirements for taxes set out in the Constitution—the uniformity rule for indirect taxes (duties, imposts, and excises), the apportionment rule for direct taxes that aren’t taxes on incomes, and the export clause that prohibits taxation of articles exported from any state. That reading of the commerce clause would gut constitutional provisions that were clearly intended to be limitations on the congressional taxing power. Even if a tax might be construed as a regulation …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

Assessing The Performance Of Place-Based Economic Development Incentives: What’S The Word On The Street?, Matthew Rossman

Faculty Publications

Although politically popular, place-based economic development incentives have had limited success and proven difficult to evaluate. Unlike most legal scholarship on this topic, this article takes a qualitative approach in examining them. It studies the performance of four distinct types of development incentives intended to alleviate economic distress, using insight gathered from interviews with business owners, development professionals, and community members in six adjoining neighborhoods, where past efforts at revitalization have failed despite locational advantages.

The challenges faced by economically distressed places are typically varied and complex. The qualitative sampling techniques employed in this article’s research generated nuanced, ‘on the …

The Delegation Doctrine, Jonathan Adler

Faculty Publications

The nondelegation doctrine may remain moribund, but the outlines of a delegation doctrine may be visible in the Court’s recent jurisprudence. Instead of policing the limits on Congress’s power to delegate authority to administrative agencies, the Court has instead been focusing on whether the power administrative agencies seek to exercise has been properly delegated by Congress in the first place. This emerging delegation doctrine may be seen in both the Court’s recent major questions doctrine cases, as well as the Court’s decisions refining and constraining the Chevron doctrine. In both contexts the Court has embraced the principle that agencies may …

Incorporating Unicorns: An Empirical Analysis, Anat Alon-Beck

Faculty Publications

There is a growing concern among regulators and academics about how to regulate unicorns - entities large enough to have a public impact yet remaining in the private domain. An examination of corporate charters within a selected sample of unicorn firms reveals an important finding: 97% of these entities are incorporated in Delaware. This concentration provides Delaware with significant leverage to shape regulatory frameworks, especially concerning the protection of parties who may lack the ability to safeguard their interests through contractual means.

This groundbreaking discovery on the dominance of Delaware showcases a substantial deviation from incorporation trends in other business …

Delaware Beware, Anat Alon-Beck

Faculty Publications

This article conducts an in-depth exploration of the dynamic competition among states to attract businesses and determine the legal framework governing corporations. It adopts an innovative market-centric viewpoint, treating corporate law as a product within the broader context of charter competition among U.S. states. While the scholarly spotlight has predominantly shone on publicly traded giants, this article daringly delves into uncharted territory, unraveling the intricate incorporation and governance decisions of privately held “unicorns”—those elusive venture capital-backed behemoths that silently shape the economic landscape.

By unraveling the decision-making processes of where these economic powerhouses incorporate, the article challenges prevailing assumptions on …

Permitting The Future, Jonathan Adler

Faculty Publications

Today’s environmental laws impose a range of permitting and review requirements on federal projects and private developments that require federal approval. While well-intentioned, these requirements have imposed substantial costs and delays on economic development, including the development of “green infrastructure.” Alternative energy projects and the infrastructure upon which they depend are constrained by lengthy permit reviews and assessments. While designed to protect the environment, these regimes may constrain the development and deployment of the environmental technologies of tomorrow, including (but not limited to) those necessary to address climate change. This essay is the introduction to a symposium on “Permitting the …

Is The Business Of The Court (Still) Business?, Jonathan Adler

Faculty Publications

The Roberts Court has long been characterized as a pro-business court, perhaps the most pro-business court in a century. Insofar as this alleged pro-business orientation is due to the Court’s Republican-appointed majority, President Trump’s appointments to the Supreme Court should have magnified the Court’s pro-business orientation. Yet there are reasons to question the general characterization of the Court as “pro-business” as well as the assumption that an increase in the Court’s Republican-appointed majority has increased any pro-business orientation. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader, legal context in which the Court’s decisions …

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Foia-Flooded Elections, Rebecca Green

Faculty Publications

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state 'freedom of information act" (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not …

The Constitutional Court Of Kosovo In Comparative Perspective, Christie S. Warren

Faculty Publications

...presented at the Solemn Ceremony of the 14th Judicial Year of the Constitutional Court, held on 23 October 2023 in Prishtina and on the occasion of the International Conference “Contribution of Constitutional Courts in the protection and strengthening of the fundamental values of democracy, the rule of law and fundamental human rights and freedoms”, organized on 24 October 2023 in Prishtina.