Law Commons^™

Justice And Reasonable Care In Negligence Law, Richard W. Wright

All Faculty Scholarship

The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, …

Negligence In The Courts: Introduction And Commentary, In Symposium, Negligence In The Courts: The Actual Practice, Richard W. Wright

All Faculty Scholarship

This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing …

Vol. 19, No. 4, Michael A. Loizzi Jr., Penny Upton, John L. Di John Jr.

The Illinois Public Employee Relations Report

Contents:

Bargaining Implications of the No Child Left Behind Act, by Michael A. Loizzi, Jr., Penny Upton and John L. Di John, Jr.

Recent Developments,

Further References, compiled by Margaret A. Chaplan

Vol. 19, No. 3, Harvey A. Nathan

The Illinois Public Employee Relations Report

Contents:

An Arbitrator's Duty to Provide a Fair and Adequate Hearing: An Historical Perspective, by Harvey A. Nathan

Recent Developments,

Further References, compiled by Margaret A. Chaplan

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

Chicago-Kent Law Review

No abstract provided.

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle C. Dreyfuss, Jane C. Ginsburg

Chicago-Kent Law Review

This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization ("WIPO") or through the World Trade Organization ("WTO").

There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be …

International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris

Chicago-Kent Law Review

The Hague Convention attempts to harmonize bases of jurisdiction and make enforcement of foreign judgments routine. At the same time, the diversity in substantive national laws in intellectual property and other areas permits nations to experiment with new and different approaches. A good international legal system will improve transnational litigation without running roughshod over national socio-cultural values, as embodied especially in intellectual property law. This Article ponders disparate factors that could diminish the importance of the whole effort, considers some values that should guide the effort if it is to go forward, and then reviews how selected provisions of the …

Constructing International Intellectual Property Law: The Role Of National Courts, Graeme B. Dinwoodie

Chicago-Kent Law Review

No abstract provided.

The Architecture Of The International Intellectual Property System, Graeme B. Dinwoodie

Chicago-Kent Law Review

In this Article, Professor Dinwoodie describes the classical architecture of the international intellectual property system, and discusses some of the ways in which that system is changing. In particular, he considers the role of national courts in the international intellectual property system. Conventional understanding suggests that national courts play a relatively limited role, but Professor Dinwoodie notes various developments that have enabled or required national courts to assume greater involvement in the construction of international intellectual property law. The infrastructure envisaged by the proposed Hague Convention, and by Professors Dreyfuss and Ginsburg in their proposal for a standalone convention on …

Summary Of The Outcome Of The Discussion In Commission Ii Of The First Part Of The Diplomatic Conference 6–20 June 2001, Interim Text, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Valuing "Domestic Self-Determination" In International Intellectual Property Jurisprudence, Graeme W. Austin

Chicago-Kent Law Review

In an era of increased globalization of intellectual property law and policy, a key challenge for domestic and international intellectual property law makers will be the balancing of domestic and international concerns. In intellectual property law, the latter are frequently given expression through the principle of territoriality. Professor Austin's Article examines the continued viability of the territoriality principle and the value of domestic self-determination in international intellectual property jurisprudence in both the private and public international law contexts, and discusses ways that the value of domestic self-determination might be balanced with the need for international cooperation in the international intellectual …

Comment: Now That We Know "The Way Forward," Let Us Stay The Course, Marc E. Hankin

Chicago-Kent Law Review

Mr. Hankin, a partner practicing intellectual property law in the Los Angeles Office of Gordon & Rees, LLP and the Chair of the American Bar Association Section of Intellectual Property Law's Committee on the Draft Hague Convention, comments on the Dreyfuss-Ginsburg proposal and its tension with current legal procedural norms and the Draft Hague Convention. Hankin argues that intellectual property law should not be treated differently procedurally from other forms of law and, accordingly, should not be subject to a special convention on procedure. Moreover, Hankin disagrees with the Dreyfuss-Ginsburg proposal's likely exclusion of patent litigation ("hard IP") from its …

Treaty Law And Legal Transition Costs, Michael P. Van Alstine

Chicago-Kent Law Review

In this Article, Professor Van Alstine examines the costs of legal transition associated with the adoption of multilateral treaties. These "legal transition costs" arise from the need to learn about the content of new legal norms as well as the uncertainty and related costs that flow from the loss of the accrued experience with the old legal regime and from contending with doubts about the new one. Building on earlier work on this phenomenon, Professor Van Alstine analyzes the special implications of transition cost analysis in the context of multilateral treaties such as the one proposed by Professors Dreyfuss and …

Rethinking Forum Shopping In Cyberspace, Kimberly A. Moore, Francesco Parisi

Chicago-Kent Law Review

A game-theoretic analysis of forum shopping reveals how opportunities for strategic choices can influence the behavior of plaintiffs and defendants. If neither party has the opportunity to make strategic choices about participation or forum, we should expect no adverse selection or moral hazard problems. Conversely, if only one of the parties can control both the participation and forum selection choices, then we could expect pervasive adverse selection and moral hazard problems. In this Article, we build on this simple game-theoretic framework to analyze Dreyfuss and Ginsburg's Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters. We …

Eliminating The Totality Of The Circumstances Test For The Public Use Bar Under Section 102(B) Of The Patent Act, Margaret L. Begalle

Chicago-Kent Law Review

Historically, courts have applied a totality of the circumstances test to determine whether a public use or sale of an invention had taken place that would bar patentability under Section 102(b) of the Patent Act. The totality of the circumstances test is burdened by ambiguity and vagueness, which in turn leaves inventors with uncertainty as to which activities trigger the 102(b) bars. In 1998, however, the Supreme Court in Pfaff v. Wells Electronics, Inc., replaced the totality of the circumstances test as applied to the on-sale bar with a clearer, two-part test. In determining whether the on-sale bar applies, …

Has The Americans With Disabilities Act Fallen On Deaf Ears? A Post-Sutton Analysis Of Mitigating Measures In The Seventh Circuit, Molly M. Joyce

Chicago-Kent Law Review

Although the Americans with Disabilities Act was lauded as a statute that would bring long-overdue relief to the disabled, the Supreme Court's decision in Sutton v. United Airlines has caused many to question the statute's value. By holding that plaintiffs must be considered in their corrected or mitigated states, Sutton greatly narrowed the group of individuals entitled to relief under the statute. Recent Seventh Circuit holdings have illustrated Sutton's shortcomings, namely that courts will be required to consider disabled plaintiffs' corrected states even if their employers discriminate against them by not allowing them to employ their assistive devices or …

Slow Death Of A Salesman: The Watering Down Of Dilution Viability By Demanding Proof Of Actual Economic Loss, Jeffrey Enright

Chicago-Kent Law Review

This Note examines the split in jurisprudence among several federal appeals courts over the Federal Trademark Dilution Act. Some circuits require proof of actual consummated economic harm before they will enjoin the diluting conduct under the statute, while other circuits merely require a showing of a likelihood of economic harm. This Note performs a historical analysis of the dilution doctrine and analyzes the rationale of the various federal appeals courts. After critiquing several arguments, Enright concludes that the harm the Act seeks to prevent precludes a requirement of proof of actual consummated economic harm before an injunction can be granted.

Vol. 19, No. 2, Daniel Nielsen, Christine Verploeg, James Martin

The Illinois Public Employee Relations Report

Contents:

Wimping Out: Practicing Arbitrators Look at Reinstatement Without Backpay, by Daniel Nielsen, Christine VerPloeg and James Martin

Recent Developments,

Further References, compiled by Margaret A. Chaplan

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

Chicago-Kent Law Review

No abstract provided.

Negligence In The Courts: Introduction And Commentary, Richard W. Wright

Chicago-Kent Law Review

No abstract provided.

The Emergence Of Cost-Benefit Balancing In English Negligence Law, Stephen G. Gilles

Chicago-Kent Law Review

The subject of this Article is whether, and to what extent, modern English negligence law relies on cost-benefit balancing. Some scholars have claimed that actors are subject to liability under English negligence law when they create a substantial foreseeable risk of harm to others, without regard to the costs of avoiding that risk. A close look at the leading English decisions shows that this account is incorrect. Reasoning from the fundamental principle that negligence is a failure to act as a reasonably prudent person would have acted, the English judiciary has repeatedly endorsed the proposition that a reasonable person balances …

Legal Phenomena, Knowledge, And Theory: A Cautionary Tale Of Hedgehogs And Foxes, Ronald J. Allen, Ross M. Rosenberg

Chicago-Kent Law Review

Humans interact, which gives rise to legal regulation, which gives rise in turn to theorizing about that legal regulation. The theorizing may be intended to, and perhaps does, influence the evolution of the legal regulation. This Article analyzes the susceptibility of legal regulation of differing types of human interaction to being organized or explained by top-down deductive theories of general applicability. We hypothesize that at least three variables determine in part the relevance of general theories to sets of legal phenomena: ambiguity (gaps in the law), unpredictability (computational intractability), and the comparative need for specialized and commonsense reasoning. We further …

The Communities That Make Standards Of Care Possible, Anita Bernstein

Chicago-Kent Law Review

This Article argues that negligence law depends on "communities" in order to fulfill its agenda of promoting both security and freedom. Although many disciplines and discourses favor divergent understandings of the word "community," for purposes of the law the defining trait of community is group-based constraint. Communities can include various human aggregations. As far as the law understands this term, members need not have joined communities voluntarily, and the community need not have any leadership or power to change the lives of its members. Negligence law reaps benefits from the fact that certain groups exist. Their constraints make individuals less …

Employee Representation In The Boundaryless Workplace, Katherine V.W. Stone

Chicago-Kent Law Review

In this Article. Stone describes changes in the organization of work that are undermining traditional union practices and patterns of collective bargaining. Many firms have dismantled their internal labor market's job structures, repudiated their former implicit promises of job security, and instead instituted workplace practices that do not depend upon long-term attachment between the employee and the firm. As employers reorganize the workplace to achieve flexibility rather than stability, many features of the labor laws and industrial union practices have become problematic. This Article identifies the ways in which current labor law and traditional union practices are in tension with …

Disciplining Sexual Harassers In The Unionized Workplace: Judicial Precedent Is Influencing Arbitrator Attitudes, Awards, Lisa I. Fried-Grodin

Chicago-Kent Law Review

Before deciding whether an employer has appropriately disciplined an employee accused of sexual harassment, many labor arbitrators draft their rulings with the employer's legal obligations in mind. When an employee's conduct rises to the level of unlawful sexual harassment or violates an employer's sexual harassment policy, arbitrators often uphold or minimally reduce harsh discipline. If, however, the grievant's conduct is less egregious, arbitrators have less tolerance for severe disciplinary measures. But before reinstating a discharged employee who was accused of sexual harassment, or otherwise reducing that employee's discipline, arbitrators consider whether the employer had a sexual harassment policy in place, …

What Judges Tell Juries About Negligence: A Review Of Pattern Jury Instructions, Patrick J. Kelley, Laurel A. Wendt

Chicago-Kent Law Review

The purpose of this Article is to help answer the question "how do judges convey the meaning of the negligence standard to juries?" The partial answer suggested in this Article comes from collecting, categorizing, and reporting on the different states' uniform or pattern jury instructions, a rich, largely untapped resource for legal scholars. The analysis of pattern negligence instructions suggests some plausible but tentative answers to other questions: how do juries understand the negligence instructions and how do they apply those instructions to the facts of individual cases? Finally, the Article discusses the relevance of those tentative answers to recurring …

Unions In A Fragmented Society, Christopher Grant Grant

Chicago-Kent Law Review

It is now well documented that over the past forty years, participation in civic organizations has declined across-the-board. All factors indicate that society is more fragmented today than in the nineteenth century. In response, various political and legal theorists have called for a return to a republican—as opposed to our current liberal—conception of freedom. Under this view, associations, such as unions, hold a special and protected place because in associations individuals learn the habits essential to self-government. Yet. if society is so fragmented, then should we not base re- form upon that fragmentation? This Note argues that we cannot ignore …

Who Framed Robert Devereaux? Devereaux V. Perez, A Deliberate Indifference Standard, And A Right Not To Be Framed In The Context Of Child Sexual Abuse Investigations, Erika A. Swanson

Chicago-Kent Law Review

In this Note, Swanson examines two major flaws in the Ninth Circuit's decision in Devereaux v. Perez. a case centering on child sexual abuse interviewing techniques. The plaintiff in Devereaux was wrongly arrested and charged with child sexual abuse based on information obtained by public officials through highly improper interviewing of the alleged child victims. The plaintiff brought suit against the officials involved in the investigation under 42 U.S.C. § 1983. and the court dismissed his suit, holding that there is no constitutional due process right to have child witnesses in a child sexual abuse investigation interviewed in a …

The Americans With Disabilities Act After University Of Alabama V. Garrett: Should The States Be Immune From Suit?, Nicole S. Richter

Chicago-Kent Law Review

In University of Alabama v. Garrett, the United States Supreme Court invalidated the Americans with Disabilities Act as it applied to the states when it held that the Eleventh Amendment precludes private individuals from suing a state in federal court for money damages. Many federal antidiscrimination statutes that protect employee rights from state infringement are enforced through private litigation. Thus, given the impact that Garrett could have on federal antidiscrimination law, it is important to determine whether the Court came to the correct conclusion concerning the Americans with Disabilities Act. An analysis of Garrett shows that, contrary to the …

Financial Accountability In Charitable Organizations: Mandating An Audit Committee Function, Karyn R. Vanderwarren

Chicago-Kent Law Review

In recent years, the public image of charitable organizations has been harmed by highly publicized cases of executive theft of charitable assets. While the federal government has responded by requiring public disclosure of financial information and by imposing intermediate sanctions on insiders receiving excessive benefits, the best place to detect or prevent theft of charitable assets is at the board level. In many cases, charitable organizations could have prevented theft of assets by ensuring that standard procedures, designed to prevent and detect such thefts, were in place. This Note argues that placing responsibility at the board level by requiring charitable …