• The Battle for a Free and Open Internet Continues

    by  • October 30, 2014 • 0 Comments

    [Reposted IIT Chicago-Kent NewsBrief]

    The Stop Online Piracy Act (SOPA), the controversial copyright bill that would have authorized the U.S. attorney general to obtain a court order to block Internet access to foreign websites accused of criminal piracy or counterfeiting, sparked the largest online protest ever.

    Prof. Edward Lee

    According to IIT Chicago-Kent Professor Edward Lee, author of The Fight for the Future: How People Defeated Hollywood and Saved the Internet—For Now, the January 18, 2012, Internet blackout was the shot heard ’round the cyber world. “On that date, more than 115,000 websites, including Wikipedia, Google and Twitter, went ‘black’ in a day of self-censorship,” says Professor Lee, director of IIT Chicago-Kent’s Program in Intellectual Property Law. “It is an incredible example of democracy in action, of civic engagement. The people—not the lawyers, lobbyists, government officials or courts—were at the forefront of the fight to save the Internet.”

    In addition to the blackout, 8 million Americans looked up contact information for their representatives in Congress, 10 million signed petitions sent to Congress, 3 million emails were sent, and 100,000 phone calls were received.

    Professor Lee likens the organization of the anti-SOPA protests, which was conducted primarily on the Internet, to the decentralized network established by Paul Revere and early American patriots to sound the alarm about the British more than 200 years ago. “Now, as then, ‘we, the people’ can make a difference,” he says.

    “The grassroots efforts by millions of people in the name of a ‘free and open Internet’ prevailed over the special interests and copyright industries that supported SOPA, but the battle is ongoing,” cautions Professor Lee. “Why do you think the FCC just received over 3 million comments on its controversial net neutrality proposal? That’s the most in FCC history.”

    Professor Lee has founded The Free Internet Project (TFIP), a nonprofit organization whose mission is to provide the public with information about the latest legal and technological efforts to protect Internet freedoms around the world. TFIP is the first nonprofit based in Chicago that is devoted to protecting Internet freedoms.

    The Free Internet Project is based on the belief that the Internet is an amazing tool for sharing knowledge, and that people around the world can learn from and share in the efforts to protect Internet freedoms in other countries. TFIP provides a user-friendly resource for the public to follow, and through which they can comment on, the latest bills, decisions, constitutional amendments, and technologies to protect the “free and open Internet.”

    “Protecting Internet freedom is the next civil rights movement of the 21st century,” says Professor Lee. “It’s happening in countries around the world, not just the United States. It’s our generation’s moment in history, how we will be later judged by future generations.

    “Every day, there are challenges and threats. The Free Internet Project hopes to make a small contribution to this movement to protect Internet freedoms by providing a common resource for people to track the legal and technological efforts people are undertaking to protect their freedoms.”

    Weekly Faculty in the News, 10/24/14

    by  • October 24, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 10/17/14 to 10/24/14.

    10/19Mary Rose Strubbe was quoted in a Chicago Daily Herald article about flight attendants’ role in battling sex discrimination (“Flight attendants helped to ground sex discrimination”). The article also mentioned the Chicago-Kent conference on the same subject, which was held at the school this past Thursday.

    10/21Richard Warner and colleague Robert Sloan (UIC) authored an article in Crain’s Chicago Business on the problem of corporate data breaches (“Why those corporate data breaches are happening,” limited access).

    10/23Edward Lee and his new nonprofit—The Free Internet Project—were highlighted in a Chicago-Kent NewsBrief. Prof. Lee’s organization is dedicated to providing the public with information about the latest legal and technological efforts to protect Internet freedoms around the world.


    10/22 – At his blog Nahmod Law, Sheldon Nahmod highlighted the Fourth Amendment Deep Dive that Oyez has put together.

    Weekly Faculty in the News, 10/17/14

    by  • October 17, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 10/9/14 to 10/17/14.

    10/9The Volokh Conspiracy blog at the Washington Post highlighted Ed Lee’s new nonprofit, The Free Internet Project, which aims “to provide the public with information about the latest legal and technological efforts to protect Internet freedoms around the world.”

    10/14 – The government tech news site FedScoop quoted Ed Lee in an article about a new service that allows the USPTO and its equivalent office in China to electronically exchange certain patent application documents (“Patent Office, China establish electronic exchange for application priority docs”).

    10/14Patently-O profiled a new empirical study of recent patent litigation co-authored by professors John Allison, Mark Lemley, and Chicago-Kent’s Dave Schwartz. The study, titled Understanding the Realities of Modern Patent Litigation, is an extensive update of a 1998 article by Allison and Lemley, and has just been published by the Texas Law Review.

    New Schwartz Article Featured at Patently-O

    by  • October 16, 2014 • 0 Comments

    A new article co-authored by John Allison (Texas), Mark Lemley (Stanford), and David Schwartz (Chicago-Kent) was featured on the Patently-O blog this week in a post by Jason Rantanen. The article, titled Understanding the Realities of Modern Patent Litigation (recently published by the Texas Law Review), is an extensive update of a groundbreaking empirical study that Allison and Lemley published in 1998. For the new article, the pair brought on Professor Schwartz to help create and analyze a new hand-coded data set on recent patent litigation. Read an excerpt of the profile at Patently-O below:

    In 1998, John Allison and Mark Lemley published a groundbreaking empirical study of patent litigation, Empirical Evidence on the Validity of Litigated Patents.  Allison and Lemley’s focus in that article was on written, final validity decisions by either district courts or the Federal Circuit from 1989 through 1996.  The basic study design philosophy was to look at patent case outcomes; that is, what was the final outcome for patents that were litigated.  That study is still widely cited.

    Working with Dave Schwartz, Allison and Lemley recently completed an updated (and much expanded) version of their 1998 study.  The results of that study are being published in several articles, but the one that links most closely with the earlier study is Understanding the Realities of Modern Patent Litigation.

    Their undertaking in this project is truly quite impressive.  The authors expanded their scope to all available decisions (not just those that were published in the U.S.P.Q., as in the earlier study) for utility patent infringement suits filed in 2008 and 2009, and personally coded the relevant case information from the docket sheets, district court opinions, briefs, and Federal Circuit decisions for hundreds of cases.  As in the earlier study, the record unit they used were patent cases, with only final decisions for a given patent being counted; in other words, where there was more than one decision in a case, they reported the last final decision on the validity of the patent.  Thus, if there was a final Federal Circuit decision, it superceded a previous district court decision; if there was a remand and subsequent final decision by the district court, it superceded the Federal Circuit ruling, and so on.  Within this set of cases, Schwartz and Lemley coded information about the cases while Allison coded patent-specific information.

    Continue reading at Patently-O for more detailed findings from the study.

    Schwartz on Teva Pharmaceuticals v. Sandoz: Inside the Case

    by  • October 15, 2014 • 0 Comments

    [Reposted from ISCOTUSnow]

    On October 15, 2014, the Supreme Court heard oral argument in Teva Pharmaceuticals v. Sandoz, a pharmaceutical patent case that could clarify critical issues of claim construction in patent litigation as well as the relative power of trial courts and appellate courts in such matters. Professor David Schwartz discusses the background of the case and the central issue: What is the proper standard of review that the appellate court should use to review claim constructions of a patent done by trial courts?

    Seyfarth Shaw Joins Staudt’s Practice and Professionalism Course

    by  • October 13, 2014 • 0 Comments

    By Alexander Rabanal, Access to Justice Fellow at Chicago-Kent’s Center for Access to Justice & Technology

    Seyfarth Shaw, one the nation’s top law firms, joined Professor Ronald W. Staudt’s Practice & Professionalism course last Thursday as Lisa Damon and Andrew Baker led an opening class of a three session section taught by the firm. Ms. Damon is a partner and the National Chair of Seyfarth Shaw’s Labor & Employment Department. Mr. Baker, a Chicago-Kent alumnus, is the Global Director of Seyfarth Shaw’s Legal Technology Innovations Office.

    Last Thursday’s class featured a discussion on the Voice of the Client—the firm’s approach to client relationships that focuses on the client’s needs in a way that goes beyond merely understanding the client’s discrete legal issue. Rather, it is an in-depth process that seeks to determine what works and does not work for the client as well as how they define success—i.e., the client’s value story. Ms. Damon and Mr. Baker also spoke about service design at Seyfarth Shaw, in which interdisciplinary teams comprised of professionals such as attorneys, legal solutions architects, and legal solutions managers leverage their diverse backgrounds and experiences to craft a tailored solution to the client’s needs. In the last part of the class, students met in groups and engaged in thought-provoking hypotheticals.

    Professionals from Seyfarth Shaw will be teaching two more classes in Practice & Professionalism. Mr. Baker and Andrew Medeiros, Associate Legal Solutions Architect and Chicago-Kent alumnus, will teach a class on project management and process improvement on Tuesday, October 14. Additionally, Byong Kim, Manager of Legal Solutions, and Amani Smathers, Associate Legal Solutions Architect, will teach a class on technology tools used to improve firm processes and serve client needs on Tuesday, October 21.

    Predicting the Winners in Integrity Staffing Solutions v. Busk and Warger v. Shauers

    by  • October 8, 2014 • 0 Comments

    By Edward Lee [reposted from ISCOTUSnow]

    The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

    Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

    Figure 1.

    Lee - 10.8.14 Integrity Staffing v Busk questions

    The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

    This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

    Figure 2.

    Lee - 10.8.14 Warger v Shauers questions

    Predicting the Winners in Holt v. Hobbs and Dart Cherokee Co. v. Owens

    by  • October 8, 2014 • 0 Comments

    By Edward Lee [reposted from ISCOTUSnow]

    The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

    The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

    Figure 1.

     Lee - 10.8.14 Dart Cherokee v Owens questions

    The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

    Figure 2.

    Lee - 10.8.14 Holt v Hobbs questions


    Heien v. North Carolina—Predicting the Winner Based on the Oral Argument

    by  • October 6, 2014 • 0 Comments

    By Edward Lee

    The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

    I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

    Figure 1.

    Lee - 10.6.14 Heien v North Carolina questions


    In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

    I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

    With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

    As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.

    Nahmod Presentation on Religion Clauses

    by  • October 6, 2014 • 0 Comments

    On September 30, professor and constitutional law expert Sheldon Nahmod led a discussion on the theory and jurisprudence of the Religion Clauses of the First Amendment, with a focus on the recent U.S. Supreme Court decisions in Town of Greece v. Galloway and Burwell v. Hobby Lobby. View a video of the talk below:

    The event was sponsored by Chicago-Kent chapters of the American Constitution Society, Federalist Society, Christian Legal Society, Muslim Law Students Association and Jewish Law Students Association (Decalogue). Visit Professor Nahmod’s blog for more insights into constitutional law issues.

    The Fourth Amendment in a Brave New World

    by  • October 2, 2014 • 0 Comments

    By Hanna Kaufman, Student writer for the Institute for Law and Humanities

    It is no secret that technology can be used to violate a person’s privacy rights. However, in his faculty workshop presentation and paper on Sept. 16, 2014, Professor I. Bennett Capers from Brooklyn Law School challenged this conventional view and argued that technology also has the capacity to protect citizens’ rights. He focused on the Fourth Amendment and how technology could assist police in carrying out searches more effectively and less discriminatorily than they currently do. For example, the police could use an app to contact a magistrate and obtain a warrant almost immediately so that there will be judicial involvement from the outset without the need for so many exceptions to the warrant requirement. He argued that new technologies can lead to more effective and more equitable policing with greater accountability to the courts and the public at large.

    Professor I. Bennett Capers of Brooklyn Law School presented on “The Fourth Amendment in a Brave New World” as a part of Chicago-Kent’s faculty speaker series.

    The audience appreciated the intention behind Professor Capers’ proposals, but some faculty members expressed concerns over whether some of the interventions he suggested could actually undermine some of his main aims or have other unforeseen consequences. For example, Professor Capers suggested using electronic scanning devices to detect whether citizens are armed with guns. He thought that it would be less troubling to scan everyone than it would be to maintain the current system of stop- and-frisk policing, in which racial minorities are often targeted. Some faculty members worried that such technology might actually enhance discrimination, citing examples in England where people in charge of monitoring video surveillance have been found to zoom in more closely on people they do not like. They suggested that officers might turn their scanners on the same people they often choose to stop and frisk now. Professor Capers responded that there could be requirements for search by scanner that are similar to existing rules for subway searches and airport security scans, and that perhaps randomization and audits need to be built into the process.

    Additional questions centered on unforeseen consequences, particularly those that might follow from Professor Capers’ controversial idea of using facial recognition technology to access a person’s criminal and other records just by scanning a person’s face. Some in the audience wondered how such a large database of information would be safeguarded, especially when mug shots are often publicly traded. Some faculty members also expressed discomfort over increasing the ease of accessing such information at a time when the police force is highly militarized and might use the information as a justification for violence against undeserving citizens.

    These are challenging questions without clear answers. Of course, the discussion itself supports a main facet of Capers’ argument: technology is neither inherently rights-denying or rights-enhancing. It is neutral. And with situations like that in Ferguson seeming to increase in frequency, it is important that we follow down Professor Capers’ path and at least try to steer our use of technology toward creating a fairer world.

    Weekly Faculty in the News, 9/26/14

    by  • September 26, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 9/18/14 to 9/26/14.

    9/18Steven Heyman and Christopher Schmidt were highlighted in a Chicago Daily Law Bulletin story on Heyman’s Constitution Day lecture at Chicago-Kent (“Law professor finds libertarian bent in some high court rulings, behind paywall”). A more in-depth version of the lecture is forthcoming in a West Virginia Law Review article titled “The Conservative-Libertarian Turn in First Amendment Jurisprudence.” Click here for photos and video of the event.

    9/18Richard Kling was mentioned in Chicago TribuneChicago Sun-Times, and Chicago Reader articles on drug dealer Jason Austin, whom U.S. District Judge Joan Lefkow recently held responsible for the slayings of a Chicago police detective and his companion in 2008. Kling, who defended Austin, stated that an appeal is likely.

    9/19Nancy Marder was quoted in a New Orleans Times-Picayune article on proposed rules that would limit lawyer-juror contact in future trials in Louisiana’s Eastern District (“Tainted BP engineer’s trial could muzzle jurors in future cases”).

    9/23Kathy Baker authored an op-ed in the Chicago Tribune on the Ray Rice controversy and the NFL’s responsibility to victims of domestic abuse (behind paywall).

    9/23Christopher Buccafusco, along with colleague Chris Sprigman (NYU School of Law), authored an article for Slate magazine’s science section on the “economics of airplane seat reclining” (“Who Deserves Those 4 Inches of Airplane Seat Space?”). Buccafusco and Sprigman presented original experimental data in the article.

    9/23Richard Warner appeared in an ABC7 Eyewitness News segment to comment on privacy issues surrounding a list accusing several University of Chicago students of sex crimes. Watch the video and read the article here.

    9/24Ryan Vogel was a guest on Politics Tonight to discuss developments in the U.S. airstrike campaign against ISIS targets. Watch the video here.

    9/24 – In an Atlantic article, Valerie Gutmann Koch, an expert in bioethics and human subjects research, disagreed with the claim that Facebook’s mood manipulation experiment might have been illegal.

    9/25Doug Godfrey and Richard Kling were quoted in a Chicago Sun-Times piece about Chicago lawyer Patrick Fitzgerald’s chances at replacing Eric Holder as U.S. Attorney General (“Does Fitzgerald’s record make him AG front-runner or long shot?”).


    9/22 – At his blog The Walters Way, Adrian Walters mused about songs that exemplify particular contract cases (“Music for contracts”).