• Race and Peremptory Challenges at the Supreme Court: Assessing Foster v. Chatman

    by  • November 20, 2015 • 0 Comments

    Image used under CC License from Wikimedia Commons

    Image used under CC License from Wikimedia Commons

    Post by Nancy S. Marder, Professor of Law, Director of the Justice John Paul Stevens Jury Center, and Co-Director of the Institute for Law and the Humanities at IIT Chicago-Kent. Previously published on ISCOTUSnow.

    On November 2, 2015, the United States Supreme Court heard oral argument in Foster v. Chatman.  The petitioner in this case, Timothy Tyrone Foster, asked the Court to decide whether the prosecutor exercised peremptory challenges based on race, in violation of an earlier Supreme Court precedent, Batson v. Kentucky. Peremptory challenges are allotted to both sides during jury selection so that they can remove a certain number of prospective jurors from the jury without having to give any reason at all.

    Batson, which was decided in 1986, established that peremptory challenges cannot be exercised by prosecutors against African-American prospective jurors if the defendant is African-American.  Later Supreme Court cases expanded Batson and established that lawyers cannot exercise peremptory challenges based on the prospective juror’s race, ethnicity (Powers v. Ohio) or gender (J.E.B. v. Alabama ex rel. T.B.), and these prohibitions apply to prosecutors and defendants (Georgia v. McCollum) in criminal cases, as well as to lawyers in civil cases (Edmonson v. Leesville Concrete Co., Inc.).

    Petitioner Timothy Tyrone Foster, an African-American man who has been on death row for the past twenty-eight years in Georgia, claimed that the prosecutors in his case violated Batson by exercising race-based peremptory challenges and striking four African-American prospective jurors during jury selection.  Foster was tried, convicted, and sentenced to death by an all-white jury.

    Foster’s case provides an unusual window into the exercise of peremptory challenges and how prosecutors have managed to circumvent the proscriptions of Batson.  When Foster objected to the prosecutors’ four peremptory challenges, the prosecutors gave seemingly race-neutral reasons for their challenges, which the trial judge and reviewing state courts accepted.  However, years later Foster was able to obtain the prosecutors’ notes through the Georgia Open Records Act.  The notes revealed that the prosecutors were working from a venire or panel list that highlighted in green those who were African-Americans, juror cards that indicated African-American prospective jurors by race, and a list of “definite no’s” that included the remaining African-American prospective jurors (after for cause challenges and hardship excuses had been exercised).

    Although the prosecutors gave seemingly race-neutral reasons for the exercise of their peremptory challenges, their notes suggested that they considered race at every stage of jury selection.  This is as close to a “smoking gun” as one is likely to find in a Batson challenge, unless the prosecutors had said outright that they had struck jurors based on their race, which no prosecutor would say after Batson.

    During oral argument at the U.S. Supreme Court, the lawyer for Georgia tried to explain the prosecutors’ notes by saying that they had to keep track of the prospective jurors’ race because the petitioner had filed a motion seeking to prevent the State from exercising peremptory challenges based on race.  Several of the Justices, however, were skeptical of this reason because it was not advanced until Georgia filed its brief at the U.S. Supreme Court.  The prosecutors had never made this argument in any of the courts below.


    Click on image for full size.

    One of the more surprising aspects of the oral argument was a procedural question about whether certiorari in this case should be directed to the Georgia Supreme Court, that had declined to issue a certificate of probable cause because it found Foster’s habeas appeal to be meritless, or whether it should be directed to the Superior Court of Butts County, Georgia that had considered and denied Foster’s habeas petition based on the newly discovered prosecutors’ notes.  The Supreme Court had taken the highly unusual step of sending the parties a letter on the Friday (Oct. 30, 2015) before Monday’s oral argument (Nov. 2, 2015), letting them know that they needed to address this procedural issue.  Each side spent almost 20 of its 30 minutes of oral argument on this issue.  However, those in the courtroom on Monday—other than the Justices and both sides’ lawyers—had no idea why the lawyers were addressing this procedural issue rather than the merits of the case.

    This procedural issue, which was not resolved at oral argument, might lead the U.S. Supreme Court to decline to reach the merits of this case, or to wait until after the Georgia Supreme Court or the Eleventh Circuit has weighed in on this issue.

    It would be unfortunate if the Supreme Court does not reach the merits of this case.  Although it is notoriously difficult to show a Batson violation, in this case the prosecutors’ notes speak for themselves and show that the prosecutors’ peremptory challenges were based on the race of the prospective jurors. If the Court reaches the merits, there is a good chance it will hold that the prosecutors in this case violated Batson.

    However, if the Court is able to reach the merits, I believe it should go even further than Foster has requested and eliminate peremptory challenges.  Peremptory challenges continue to serve as a mask for discrimination during jury selection.  Justice Thurgood Marshall, in his concurrence in Batson thirty years ago, urged the Court to eliminate peremptory challenges in order to eliminate discrimination during jury selection.  He wrote that as long as peremptory challenges were permitted, discrimination during jury selection would persist.  Justice Marshall was right and thirty years of experience with Batson have proven his point.

    Read Nancy S. Marder’s article, “Foster v. Chatman: A Watershed Moment for Batson and the Peremptory Challenge?” on SSRN.

    Introducing the Fall 2015 Issue of Faculty Perspectives

    by  • November 17, 2015 • 0 Comments

    Published regularly, Faculty Perspectives highlights recent faculty scholarship at IIT Chicago-Kent College of Law. The newest issue highlights selections of our faculty’s work that pushes boundaries in the realm of law. In a piece forthcoming in the UC Davis Law Review, Kimberly Bailey highlights the impact of government surveillance on one’s self determination. Alexander Boni-Saenz proposes a revision to current sexual incapacity doctrine and how we view cognitively impaired adults’ ability to consent. In a piece forthcoming in the Minnesota Journal of Law, Science & Technology, Richard Warner and Robert Sloan examine the history of the East German police state for insight on current surveillance and privacy laws. Also in this issue, Daniel Katz unpacks his concept of a theoretical “MIT School of Law” and legal education that emphasizes practice.

    Read the Fall 2015 issue of Faculty Perspectives below or online at http://bit.ly/1I3XvjZ. Find more recent Chicago-Kent scholarship at http://www.kentlaw.iit.edu/faculty/recent-scholarship.

    Joan Steinman in Vanderbilt Law Review’s Roundtable

    by  • November 6, 2015 • 0 Comments

    This past week, Professor Joan Steinman’s “Spokeo, Where Shalt Thou Stand?” was included in Vanderbilt Law Review’s En Banc Roundtable discussing Spokeo, Inc v. RobinsProf. Steinman joined IIT Chicago-Kent’s faculty in 1977, has served as interim dean, and has authored numerous articles on class actions, suits for money damages to vindicate First Amendment rights, and law of the case doctrine, among many others.

    Spokeo, Where Shalt Thou Stand?” opens with the following:

    “Spokeo” has such a Shakespearean sound that I felt compelled to ask a question worthy of the name: thus, “Where shalt thou stand?” This essay analyzes three distinct issues raised by Spokeo, Inc. v. Robins and considers where the Court will stand on each of them. First, I consider whether the Court will decide the question on which it granted certiorari: “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute?” I explain why the Court might dismiss its writ of certiorari as improvidently granted. Second, I address whether Spokeo, Inc. or Robins has the better of the argument concerning Robins’ standing to sue. I opine that the Court’s decisions regarding standing in disputes concerning informational rights and wrongs indicate that it should find that the injury alleged by Robins is sufficiently concrete to confer Article III standing, and that Robins also satisfies prudential standing doctrines. Finally, I argue that the Court should not be dissuaded from so holding by the fact that the suit was brought as a class action.

    Read Prof. Steinman’s entire piece here. Visit Vanderbilt’s En Banc site for the whole Roundtable discussion.

    SCIPR 2015

    by  • October 23, 2015 • 0 Comments

    On Friday September 25, Chicago-Kent hosted the sixth annual SCIPR (Supreme Court IP Review) conference, an event that brings together intellectual property practitioners, academics, jurists and students to review IP cases from SCOTUS’s past term.

    Conference Website: https://www.kentlaw.iit.edu/scipr

    Welcome Remarks & Morning Session

    Opening Remarks - KrentChicago-Kent’s Dean Harold J. Krent introduced the conference and gave the spotlight to Professor Edward Lee, who reflected on “the impact nine people can have on others” and the ways in which the Supreme Court could change the name “Alice” into something feared (referring to 2014’s Alice Corp. v. CLS Bank Int’l case on patent-eligible subject matter). “We’re trying to find this year’s Alice,” he said.

    Trademark Panel

    Moderator: Sydney R. Kokjohn (McDonnell Boehnen Hulbert & Berghoff LLP)


    Case Summaries:

    Hana Financial, Inc. v. Hana Bank
    The jury, rather than a court, determines whether the use of an older trademark may be tacked to a newer one.

    B&B Hardware, Inc. v. Hargis Industries, Inc.
    So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the Trademark Trial and Appeal Board are materially the same as those before a district court, issue preclusion should apply.

    Related publications

    Articles related to these cases by the moderator and panelists

    Patent I Panel

    SCIPR_0048Moderator: Daniel S. Stringfield (Steptoe & Johnson LLP)


    • Mark D. Strachan (Sayles | Werbner, counsel for Commil USA)
    • Prof. Saurabh Vishnubhakat (Texas A&M University School of Law)
    • Prof. Daryl Lim (John Marshall Law School, on Brief Amici Curiae for Sixteen Intellectual Property Law Professors in Support of the Respondent)

    Case Summary:

    Commil USA v. Cisco
    A defendant’s belief regarding patent validity is not a defense to an induced infringement claim.

    Related publications

    Patent II Panel

    Patent II PanelModerator: Robert A. Surrette (McAndrews, Held & Malloy Ltd.)


    Case Summary:

    Teva Pharmaceuticals v. Sandoz
    When reviewing a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a “clear error,” not a de novo, standard of review.

    Related publications:

    Keynote Address: “Censorship in the Guise of Authorship: Harmonizing Copyright and the First Amendment”

    SCIPR-Judge-McKeown_0113Introduced by: Emily Miao (McDonnell Boehnen Hulbert & Berghoff LLP)

    Keynote Address by the Honorable M. Margaret McKeown (U.S. Court of Appeals for the Ninth Circuit).

    The Hon. McKeown spoke on Copyright in the First Amendment–specifically copyright infringements that are considered “personal harms.”

    Patent III Panel

    SCIPR_0171Moderator: David W.Clough (Morgan, Lewis & Bockius LLP)


    • Thomas G. Saunders (WilmerHale, counsel for Marvel)
    • David L. Applegate (Williams Montgomery & John, counsel for IPLAC as amicus curiae in support of neither party)
    • Fiona A. Schaeffer (Milbank, Tweed, Hadley & McCloy LLP, counsel for the Association of the Bar of the City of New York as amicus curiae in support of neither party)

    Case Summary:

    Kimble v. Marvel Enterprises, Inc.
    Declining to overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

    Related Publications

    Supreme Court Analytics on the Past Term

    SCIPR_Upcoming TermIn a brief intermission, Chicago-Kent’s Prof. Edward Lee took the stage to analyze trends and alignments in the Supreme Court for the past term. Afterward, Prof. Daniel Katz (also Chicago-Kent) gave a brief overview of algorithms which can be used to predict future rulings.

    Preview on the Upcoming Term

    SCIPR_PreviewModerator: Christopher Schmidt (Chicago-Kent College of Law)


    Franchise Tax Board of California v. Hyatt

    1. Dispute over tax on inventor’s income
    2. Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts
    3. Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled.

    Google v. Oracle
    Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way.

    The panel also overviewed petitions to watch in the upcoming term.

    Watch the SCIPR Conference on Youtube.

    Dan Tarlock and Henry Perritt in ScholarRank’s Top 250

    by  • October 13, 2015 • 0 Comments

    Chicago-Kent professors Henry H. Perritt, Jr. and A. Dan Tarlock have been listed in ScholarRank’s Top 250 Authors. The list was compiled from HeinOnline’s extensive database and averaged citations and number of times accessed in the database’s records. Professors Tarlock and Perritt are listed alongside legal luminaries both past and present.

    William S. Hein & Co., Inc. is the world’s largest distributor of legal periodicals. Their research and reference tools for law, international relations, political science, and foreign affairs are widely used both online and in over 3,200 locations worldwide.

    Professor Perritt is the author of over 75 law review articles as well as 17 books related to law and technology, international relations, and other fields. He served as Chicago-Kent’s dean from 1997-2002, and has has promoted change and refugee aid through “Project Bosnia” and other programs.

    Professor Tarlock, a member of the Chicago-Kent faculty since 1981, is established as an expert in environmental law, the law of the land, and water use. He has published a treatise and co-authored four casebooks, and is a consultant to local, state, federal, and national agencies, as well as private groups and law firms. He is an elected member of the American Law Institute.

    Read more about Professor Perritt’s work here and Professor Tarlock’s work here.

    Oranburg on Crowdfunding

    by  • October 6, 2015 • 0 Comments

    Photo by Simon Cunningham, used with CC license

    Photo by Simon Cunningham, used with CC license

    In Professor Seth Oranburg‘s forthcoming book Social Media Investing, he intends to “weave together ideas from various literature and present new theories in corporate finance, securities regulation, business associations, and entrepreneurship.” In anticipation of the book, Professor Seth Oranburg examined the impact of crowdfunding as an emerging financial model in a guest post on the GoodCrowd blog. Read an excerpt below:

    Crowdfunding began as a way for independent musical artists to raise a few thousand dollars to rent a recording studio and release a record. It evolved distinct “rewards” and “donative” models. Rewards crowdfunding promotes consumer projects ranging from the niche (a casebook about zombie law) to the ubiquitous (the Pebble smartwatch). Donative crowdfunding promotes new charitable projects like micro-lending and cancer research. Public crowdfunding is a new model, where mature nonprofits are using portals to fund public goods by offering rewards and challenges.

    Public crowdfunding is different from traditional charity fundraising in at least three important ways. First, public crowdfunding is an open call to action on the Internet to all people, not a targeted charity campaign to visitors or former donors. Second, public crowdfunding uses gamification principles like challenges and rewards to attract backers in real time. Third, public crowdfunding highlights and advertises a specific public-good product, instead of promoting a non-profit generally. These three factors, harnessing the power of the Internet, make public crowdfunding a powerful new tool to democratize charities.

    Professor Oranburg is also interested in the confluence of crowdfunding and law practice. You can read the rest of his piece at GoodCrowd.

    Welcome New Chicago Kent Faculty Fall 2015!

    by  • August 28, 2015 • 0 Comments

    Chicago Kent is pleased to welcome new faculty to our campus this semester.

    From the IIT Provost’s office:

    daniel-martin-katzDaniel Martin Katz
    Associate Professor of Law
    Chicago-Kent College of Law

    Research Interests: Legal education in the twenty-first century; data-driven future of the legal services industry; social network analysis of the American federal judiciary/law professoriate; legal informatics; law and entrepreneurship
    Background: Associate professor of law, Michigan State University; Ph.D., University of Michigan; J.D., University of Michigan Law School

    Lewis_Myrisha_portraitMyrisha Lewis
    Visiting Assistant Professor
    Chicago-Kent College of Law

    Research Interests: Family law; criminal law; comparative Constitutional law; European Union law; trusts and estates; bioethics; torts
    Background: U.S. Nuclear Regulatory Commission; J.D., Columbia University School of Law

    Oranburg_Seth_portraitSeth Oranburg
    Visiting Assistant Professor of Law
    Chicago-Kent College of Law

    Research Interests: How social media is impacting shareholder activism and discovery; crowdfunding and Title III/Series A Gap; personal liability for founders; the angel/venture capital gap
    Background: Visiting assistant professor, Florida State College of Law; J.D., University of Chicago Law School

    NLRB Rules That Northwestern University Football Players Cannot Unionize

    by  • August 17, 2015 • 0 Comments

    By César F. Rosado Marzán

    Today, the NLRB determined whether or not the Northwestern University football players could unionize. It decided that they could not. However, the NLRB’s decision did not hinge on the issue of whether or not the college athletes are employees under the NLRA, but on its determination that the Board would not foment stable industrial relations under the NLRA if it enabled the college athletes to unionize.

    Even if the NLRB was reasonable in determining that collective bargaining would not provide for stable industrial relations in college football, such determination could have been better reached by the parties themselves, and especially the college athletes. That’s the beauty of collective bargaining: it lets parties make those sorts of determinations without second-guessing by the state.

    According to the Board, collective bargaining in college football would require league-wide bargaining, including with those units with putative public sector employees who are beyond the reach of the NLRB’s jurisdiction—the college athletes who play for state schools. The arrangement of college football proved too complex for the NLRA’s model of collective bargaining, according to the NLRB. However, the Board reached this decision even when professional Canadian athletes in baseball and hockey do not fall under the NLRB’s jurisdiction; professional baseball and hockey are unionized.

    The Board limited its decision to the facts of the case. However, the decision will be used by the management bar to justify further instances of non-recognition of employees in non-standard forms of employment, e.g., graduate students, workers who are also clients and patients of their employers (as in mental health institutions), temporary employees, among others. About a quarter of U.S. workers work in such types of non-standard settings. Today a quarter of the U.S workforce has something new to struggle against.

    The response to such attempts of non-recognition will thus necessarily remain the good old-fashioned one: workers will have to fight for recognition despite the law, through their collective efforts. The maladies of asymmetrical market relationships that the NLRA attempts to remedy, namely industrial strife, will inevitably be pushed to the surface given today’s unfortunate NLRB decision.

    Kling Comments on Dennis Hastert Indictment

    by  • June 10, 2015 • 0 Comments

    Professor Richard Kling has spoken with numerous news sources about the recent federal indictment and arraignment of former U.S. House Speaker Dennis Hastert. According to Prof. Kling, the former speaker will likely accept a plea deal to avoid the public spotlight of an extended trial. See below for a roundup of Prof. Kling’s media appearances:



    Hastert pleads not guilty in hush money case,” WBEZ/NPR

    Elonis v. United States: Treading Carefully with Regard to Threats and Free Speech

    by  • June 5, 2015 • 0 Comments

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]

    This Monday, June 1, 2015, the Supreme Court handed down its long-awaited decision in Elonis v. United States. In a 7-2 ruling by Chief Justice John G. Roberts, Jr., the Court narrowed the circumstances under which individuals can be convicted of making criminal threats under federal law when they post statements on social media like Facebook. At the same time, the Court showed a prudent inclination to tread cautiously in a difficult area.

    After Anthony Elonis’s wife left him, he began to write graphically violent rap lyrics and post them to his Facebook account. In several posts, he fantasized about murdering his estranged wife. Others contained violent thoughts about the workplace from which he had been fired, his former co-workers, and an FBI agent who had investigated the matter. In one post, he even talked about massacring a local kindergarten class.

    Elonis was tried and convicted in federal court of four counts of violating 18 U.S.C. § 875(c), a 1939 law that makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The trial judge instructed the jury that, under this statute, it is not necessary for the prosecution to prove that the defendant intended his statements to be threatening. Rather, it is enough to prove that the defendant reasonably should have known that other people would take his statements to be threats—a standard that is often referred to as negligence. (more…)

    Birdthistle on FIFA at the Volokh Conspiracy

    by  • June 3, 2015 • 0 Comments

    In two new guest posts at the Washington Post’s Volokh Conspiracy blog, Professor William Birdthistle unpacks the United States’ recent indictment of FIFA on charges of racketeering, bribery, money laundering, and fraud. In the first post, “Americanized football” (May 27, 2015), Prof. Birdthistle pursues the immediate questions raised by the indictment:

    Why is the United States bringing these charges? Perhaps a secret competition was held amongst international prosecutors, and we won the bidding over Qatar and Russia? No, that would never happen. Countries like the United Kingdom, Germany, and Spain might be far more likely candidates to police corruption in the game they love so much. But if they struck at King Blatter and missed, they could suffer serious reprisals from an organization that has amply proved its unprincipled style of governance. The United States may be the only country in the world both powerful enough and indifferent to soccer enough to hunt down FIFA.

    Continue reading at The Volokh Conspiracy→

    In the second post, “Burst Blatter” (June 2, 2015), Prof. Birdthistle looks at FIFA President Sepp Blatter, who was not named in the indictment but who resigned from his post this week:

    The New York Times reported Monday that a $10 million bribe for the South African World Cup had been authorized by Jérôme Valcke, Sepp’s bro-hugging number two at FIFA. FIFA, in true gangland style, immediately identified a dead person as the true perp, but documents published Tuesday showed Valcke’s name on key correspondence.

    What exactly was Valcke’s authority? FIFA said that Valcke, as secretary general, “has authority to make transactions.” But organizational by-laws, even of nonprofits, don’t typically authorize officers simply “to make transactions” — such unlimited authority would invite embezzling officers to fire off billions to a Cayman account and then disappear. Surely that couldn’t happen at FIFA, could it? Credible organizations often either specify a dollar amount up to which the person has spending authority or require a board resolution authorizing the officer to make specific payments. So perhaps Valcke made the payments without authorization or made them with Blatter’s full knowledge.

    Continue reading at The Volokh Conspiracy→

    Lee IP Article Makes “Best Of” List

    by  • May 13, 2015 • 0 Comments

    Professor Edward Lee’s article The Global Trade Mark (35 U. Pa. J. Int’l L. 917 (2014)) has been selected by the Intellectual Property Law Review as one of the best intellectual property articles of 2014. The article will appear in the 2015 edition of the Intellectual Property Law Review’s annual anthology, published by Thomson Reuters (West).

    Read an abstract of the article below, or download at http://ssrn.com/abstract=1804985.

    This Article offers a proposal for World Trade Organization (WTO) countries to adopt global intellectual property rights for a special class of trademarks: famous or well-known marks. Well-known marks are well-suited for greater departure from the territoriality principle, given the transnational protections for well-known marks that already exist under the Paris Convention and TRIPS Agreement. This Article proposes creating a Global Trademark (GTM) for well-known marks, to be governed by one, uniform international law. The GTM will span all countries in the WTO. The GTM is inspired, in part, by the Community Trade Mark (CTM) in the European Union, the first truly transnational intellectual property form. While the CTM is regional in scope, the GTM will be international.

    This Article proceeds in five Parts. Part I discusses the theory behind the Global Trade Mark (GTM) and why it is worth adopting today. Part II discusses the outlines of the proposed Global Trade Mark Treaty, whose signal feature will be to establish a uniform body of international law to govern the GTM and an International Court of the GTM to resolve conflicts over its interpretation. Part III discusses the two Pathways by which a trademark can be registered as a GTM: (1) international registration of an existing famous mark that is famous in a certain threshold number of countries (here under a proposed Rule of 7 countries, the formula of which is discussed below), or (2) an “intent-to-develop” registration of a mark an owner intends to make famous under the Rule of 7 countries within a prescribed time of 10 years. Part IV discusses enforcement of GTMs in national courts and post-registration issues, including abandonment and genericide. Part V addresses objections.