• A Modest Proposal

    by  • November 12, 2014 • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [Reposted from ISCOTUSnow]


    Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

    While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.

    (more…)

    The Second Amendment and Section 1983: A Podcast

    by  • November 11, 2014 • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]


    As many of you may know, Chicago-Kent’s CLE department has presented my two-day Conference on Section 1983 for over thirty years. The next one is scheduled for April  16-17, 2015.

    As part of the most recent Conference in April 2014, I spoke in depth about the Second Amendment (Heller, McDonald and circuit case law) and its relation to section 1983.

    I am pleased to present the 45 minute podcast of that presentation and hope you find it of interest. It’s a very good way to understand the basics.

    Here is the audio:

    I invite you to follow me on Twitter @NahmodLaw

    Rosado Marzán Launches Book in Chile

    by  • November 5, 2014 • 0 Comments

    rosado book launch

    Sergio Gamonal C. (left) and César F. Rosado Marzán.

    On October 20, 2014, Professors César F. Rosado Marzán (IIT Chicago-Kent) and Sergio Gamonal C. (Adolfo Ibáñez) launched their new book, El Principio de Protección del Trabajador en el Derecho Norteamericano (“The Protective Principle in U.S. Work Law”), at the Universidad Adolfo Ibáñez in Santiago, Chile. The launch ceremony featured a discussion of the book with Omar Astudillo Contreras, Minister of the Court of Appeals of Santiago, and Jose Luis Ugarte Cataldo, a professor at the Universidad Diego Portales and one of the most prolific labor law scholars in Chile.

    Rosado bookEl Principio de Protección del Trabajador en el Derecho Norteamericano, published by Thomas Reuters-Chile, is a modified translation of the authors’ English article “Protecting Workers as a Matter of Principle: A South American View of U.S. Work Law” (forthcoming in the Washington University Global Studies Law Review). The book and article are attempts to use South American models to jump-start a discussion in the U.S. about the country’s need to develop more substantive principles for labor and employment law (i.e. “work law”).

    Scholars have noted that judicial conservatism has eroded work in law in the United States. The Roberts Court has kept in line with such conservatism, deciding a number of key work law cases in favor of employers. But the rebirth of work law in South America after years of authoritarian rule and dictatorship may provide valuable lessons for the U.S. and other jurisdictions. In particular, the authors point to the principle of protection, perhaps the central pillar of South American work law, as a doctrine that may help develop U.S. work law.

    To read the English article version, click here.

    Note: The book is not yet available online for purchase, but once it is, it will be available here.

    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.

    Blogs:

    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.