• New Book by Professor William Birdthistle Critiques Mutual Funds Industry and How Americans Save for Retirement

    by  • June 29, 2016 • 0 Comments

    Empire of the Fund book cover artIn his new book, Empire of the Fund: The Way We Save Now (Oxford University Press 2016), Professor William Birdthistle exposes and critiques what he calls the richest and riskiest experiment in our nation’s financial history. He illustrates the flaws in the hypothesis of that experiment: that millions of ordinary, untrained, and busy citizens can successfully manage trillions of dollars in a financial system governed by powerful financial institutions.

    Professor Birdthistle explores the obstacles that individual investors face when using mutual funds to save and offers three solutions for how to safeguard their individual financial destinies as well as the nation’s fiscal strength.

    A single generation ago, many Americans enjoyed the prospects of paying for their golden years with a steady stream of income from their pension plans. Today, only 3 percent of U.S. private-sector workers are covered solely by pensions, while one-third of American households have no retirement savings at all. With the demise of pensions and the rise of 401(k) plans, Americans today will have to support themselves on the returns however high or low of their personal investment accounts.

    To protect their financial security, Professor Birdthistle argues that Americans will need “a greater understanding of mutual funds, more transparency from the financial firms that manage them, and stronger enforcement by prosecutors of the regulations that govern funds.” He proposes opening the federal Thrift Savings Plan to all Americans so they can benefit from a low-cost, well-run saving plan.

    Find out more about Empire of the Fund at the book’s website, and watch the video trailer of Professor Birdthistle introducing the book in verse.

    New Lee Article: Empirical Study on “Patent Trolls” in Media

    by  • April 27, 2016 • 0 Comments

    Professor Edward Lee, Director of the Program in Intellectual Property Law, has authored a new article titled “Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform.” The article is forthcoming in Stanford Technology Law Review, Vol. 19, 2016.

    Abstract:

    This Article provides the first empirical study of the use of the term “patent troll” by U.S. media-specifically, examining leading newspapers and online publications. The study offers several key findings: (1) First, starting in 2006, the U.S. media surveyed used “patent troll” far more than any other term, despite the efforts of scholars to devise alternative, more neutral-sounding terms. The tipping point was the combination of the controversial Blackberry and eBay patent cases in 2006 — prior to that time, “patent holding company” was the most popular term. (2) Second, the media more often portrayed such patent entities in a one-sided, negative light with very little analysis or empirical support. For example, few works provided statistics or discussion of any studies to support their negative portrayal. Practically no articles mentioned the lack of a working requirement in U.S. patent law, which permits all patentees not to practice their inventions. These findings provide support for the recent judicial decisions that have barred, at trial, the use of the term “patent troll” as unfairly prejudicial.

    Download the paper on SSRN here.

    Gerber Article Wins Antitrust Writing Award

    by  • April 8, 2016 • 0 Comments

    At the 2016 Antitrust Writing Awards Gala Dinner on April 5, Professor David Gerber  was recognized for writing one of the best “Cross-Border” transnational antitrust academic articles published in peer-reviewed journals in 2015.

    During an interview at the event, Professor Gerber discussed “two cloudy subjects” he believes are very important in international antitrust.

    “Global competition law convergence: Potential roles for economics”

    by Distinguished Professor David Gerber

    Research Handbook on Comparative Law and Economics, Chapter 9, 2016

    Read the full chapter

    Rosado Marzan on Knowledge@Wharton, BBC Newshour

    by  • March 16, 2016 • 0 Comments

    Last week, Professor Cesar Rosado Marzán appeared on University of Pennsylvania’s Knowledge@Wharton to discuss the ongoing NLRB labor law disputes with McDonald’s. From the interview:

    McDonald’s appears to be in a tight spot, with problems looming whichever direction it goes. “If McDonald’s is found to be liable for the labor law violations of its franchisees, then as a joint employer it could end up at the bargaining table,” said Cesar . . . If, on the other hand, it doesn’t support the franchise operators, he agreed that it might end up earning the latter’s wrath.

    Prof. Rosado Marzán continued,

    “If McDonald’s is found to be essentially liable for the labor law violations of a franchisee, it means that it’s a joint employer according to the NRA. And if such, then it may end up on the bargaining table if, at some point, McDonald’s workers decide to bargain collectively […] with the corporation.” (more…)

    Justice Scalia and the Transformation of First Amendment Jurisprudence

    by  • March 1, 2016 • 0 Comments

    By Steven Heyman, Professor of Law [reposted from ISCOTUS]


    Antonin Scalia served on the federal bench for over three decades, first on the U.S. Court of Appeals for the District of Columbia Circuit (1982-86) and then on the U.S. Supreme Court (1986-2016).  This period coincided with a remarkable shift in our nation’s ongoing debate over the meaning of the First Amendment.  Traditionally, liberals defended a broad understanding of the constitutional freedoms of speech, press, and association, while conservatives believed that those freedoms were subject to legal regulation in the interests of social order, public morality, and national security.  During the 1980s, however, some scholars and activists on the left started to propose restrictions on racist hate speech as well as violent and degrading pornography, on the ground that these forms of expression undermine the equality of women and minorities.  In response, some conservatives began to develop a more libertarian position, which appealed to the First Amendment as a bulwark against what they regarded as the dangers of political correctness.  In recent years, this conservative-libertarian approach has become one of the most important currents in First Amendment law.  The federal courts have increasingly used this approach to strike down regulations that seek to promote liberal or progressive values.

    Justice Scalia played a leading role in this transformation of First Amendment jurisprudence.  In R.A.V. v. City of St. Paul (1992), a teenager who burned a cross in an African-American family’s yard was charged with violating a city ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that one knows or reasonably should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Although this ordinance seemed overly broad on its face, the Minnesota Supreme Court interpreted it in a narrow way to apply only to symbolic conduct that fell within the definition of “fighting words” or other categories of expression that have long been held unprotected by the First Amendment.  When interpreted in this way, the ordinance appeared to be constitutional, but the US Supreme Court struck it down.  In an opinion for five Justices, Scalia held that although the government may ban all fighting words, it may not ban only those fighting words that are based on race, religion, or gender, for this sort of “selectivity” raises the specter that the government is seeking to impose an ideological orthodoxy on citizens by punishing the expression of racist views. (more…)

    Introducing The Society of Investment Law

    by  • February 26, 2016 • 0 Comments

    CK Banner 2016

    By William Birdthistle


    Legal scholars, practitioners, and regulators of investment funds have a new learned society to encourage scholarship in their field.  The Society of Investment Law is an international organization of academics and attorneys interested in the study of legal issues relating to investors, advisers, and investment funds.  The society will host an annual meeting to promote the discussion of developments in this field.

    For the past eight years, Professors Tamar Frankel of Boston University School of Law and William Birdthistle of Chicago-Kent College of Law have co-hosted an annual roundtable discussion about developments in investment law.  Keynote speakers at those events have included Professor John Coates of Harvard Law School, reporter Daisy Maxey of the Wall Street Journal, Nell Minow of the Corporate Library, Professor Andrew Lo of the MIT Sloan School of Management, and Robert Plaze of the SEC’s Division of Investment Management.

    As an institution, the Society of Investment Law will build upon these roundtables to encourage scholarship and discussions about investment law.  The society’s founding board of directors includes Frankel, Birdthistle, Coates, and Mercer Bullard of the University of Mississippi School of Law, Quinn Curtis of the University of Virginia School of Law, Deborah DeMott of Duke University School of Law, Jennifer Taub of Vermont Law School, Dirk Zetzsche of the University of Liechtenstein, and John Morley of Yale Law School.  The inaugural officers of the society are Frankel as chair of the board, Birdthistle as president, Morley as vice president, and Taub as secretary.

    The society’s official web site is http://societyofinvestmentlaw.org.

    The Politics of Preservation: An Interdisciplinary Discussion of Cultural Heritage and Historic Preservation

    by  • February 23, 2016 • 0 Comments

    Over the past century we have steadily shifted more resources, both intellectual and monetary, to preserving historic properties and protecting cultural heritage. More recently we have added to this preservation focus increasing concerns about who is entitled to define and lay claim to material culture from the past. Here in the United States these debates play out in the context of historic properties, the National Historic Preservation Act, and a variety of legislative acts that protect the cultural heritage of Native Americans. In the international realm these debates focus on the identification and protection of world heritage sites and the illicit movement of antiquities.

    Regardless of the separate and at times even conflicting legal regimes that govern the preservation of domestic historic properties and international cultural heritage, they share some of the same historic and cultural roots and give rise to similar issues and questions. Why do we put so much stock in the preservation of our material culture and built environments, even at the expense of other social and economic goals? How do we define what is worth saving and whose voices are privileged in that process? How do we reconcile the communal goals at the heart of preservation with concerns about protecting private property and sovereignty?

    This one-day conference will explore these issues through a cross-disciplinary discussion between leaders in the fields of archeology, anthropology, history, architecture, and law.

    The Politics of Preservation
    Friday, April 29, 2016
    Morris Hall, IIT Chicago-Kent College of Law
    565 W Adams St, Chicago IL (more…)

    “Get Over It”: Nahmod on Scalia and SCOTUS

    by  • February 22, 2016 • 0 Comments

    By Sheldon Nahmod [reposted from Nahmod Law] Twitter: @NahmodLaw.


    It is one of the worst Supreme Court decisions in history.

    No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

    I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

    I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

    And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

    All four of these decisions are morally repugnant, and several are even evil.

    No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

    (more…)

    Shapiro in CNN on “How Scalia played with fire”

    by  • February 17, 2016 • 0 Comments

    The following opinion piece by Professor Shapiro, “How Scalia played with fire,” was posted February 16, 2016, on cnn.com.

    By Carolyn Shapiro


    The late Justice Antonin Scalia has been justly praised for his tremendous intellect, his resounding influence on the law and his supremely accessible opinions. And since his death Saturday, many commentators have noted his sincere, long friendship with liberal Justice Ruth Bader Ginsburg and others with whom he often disagreed.

    Indeed, some have suggested that we use the legendary Scalia-Ginsburg friendship — so well-known that it inspired an opera — as a model for how we should all relate to those whose political views we disagree with.

    But Scalia’s personal warmth should not preclude considering to what extent his jurisprudence and his famously acerbic tone may have contributed to the polarized national conversation about the court.

    Read more on CNN.

    Lori Andrews at i3

    by  • January 22, 2016 • 0 Comments

    Lori Andrews and Hoda Kotb

    Lori Andrews (right) and Hoda Kotb

    Last week, Professor Lori Andrews spoke in New York City at “i3 – Insight, Innovation, Impact – A Summit for Women.” Sponsored by the UJA-Federation, the Summit brought together female thought leaders to share their stories of impact and change. In a five-hour program kicked off by Hoda Kotb of The Today Show, Professor Andrews shared the spotlight with women who had excelled in their fields—including women in law, science, journalism, innovation, and philanthropy. Andrews spoke on the issue of “Civil Liberties and National Security.” She fielded questions on whether the government should have a key to unlock all encryption on the web, how data aggregators collect personal information about people and what they do with it, how businesses might use facial recognition software, and the extent to which European laws can be applied against US-based social media companies.

    Read more about the conference here.

    Professor Koch on Updates to the Common Rule

    by  • January 6, 2016 • 0 Comments

    By Valerie Gutmann Koch


    On January 5, I submitted, along with Jessica Roberts, Associate Professor of Law and Director, Health Law & Policy Institute at the University of Houston Law Center, comments on the Notice of Proposed Rule Making (NPRM) for revisions to the Common Rule (45 CFR 46), the regulations that govern the majority of human subjects research in the United States. These revisions will be the first since the Common Rule was promulgated in 1991. Our letter to Jerry Menikoff, the Director of the Office for Human Research Protections (OHRP), focused on three primary deficiencies in the proposed revisions. We therefore encouraged the Department of Health and Human Services (HHS) to: (1) encourage Congress to provide a statutory private right of action for the Common Rule; (2) clarify whether research subjects have a potential commercial interest in the research done on their biospecimens; and (3) eliminate the distinction between biospecimens and personal information and data. The letter is available here.

    Our letter was also featured on the blog for the Yale Journal of Law and Technology (YJOLT).