• Archive for October, 2012

    Nahmod on Fisher v. Texas

    by  • October 31, 2012 • Faculty Commentary • 0 Comments

    Professor Sheldon Nahmod was recently quoted in a Medill Reports article titled “Possible Effects of Affirmative Action Case Vary by University.” The article addresses key implications arising from the Fisher v. University of Texas Supreme Court case, which concerns the use of race-conscious admissions by universities.

    Read Professor Nahmod’s insights on the case or head over to his blog for more commentary on constitutional law.

    Two New Articles by Perritt

    by  • October 29, 2012 • Faculty Scholarship • 0 Comments

    Professor Henry Perritt has recently uploaded two new articles to SSRN, The Internet at 20: Evolution of a Constitution for Cyberspace (Wm. & Mary Bill Rts. J., forthcoming 2012) and Crowdsourcing Indie Movies (working paper). Read the abstracts for both papers below.

    The Internet at 20 Abstract

    “This Article looks back over the Internet’s first twenty years, highlighting the crucial legal decisions by the executive, legislative, and judicial branches that have led to the Internet’s success, and which now frame its constitution. I participated in many of these decisions and wrote more than a dozen law review articles and reports suggesting directions for public policy and law. This Article uses this foundation to consider the future, focusing on major legal controversies, the resolution of which will define the Internet’s third decade—either strengthening or undermining its constitution.”

    Download the article from SSRN here.

    Crowdsourcing Indie Movies Abstract

    “Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their movie, considering what plans they should make for crowdsourcing, the available Web-based and software tools, and the business and legal issues that arise from that use of crowdsourcing. It concludes by identifying desirable technology developments and legal reform.”

    Download the article from SSRN here.

    Haugh Article Makes Top 10 List

    by  • October 26, 2012 • Faculty Scholarship • 0 Comments

    Visiting Assistant Professor Todd Haugh’s new article “Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases” recently made the “Top 10 New Downloads” list in two eJournal categories on SSRN–the “Law & Society: Criminal Procedure” eJournal and the “White Collar Crime” eJournal.

    Click here to read the abstract and download the article.

    Justice John Paul Stevens Video

    by  • October 25, 2012 • Faculty Workshops/ Conferences, Multimedia • 0 Comments

    Video from retired Justice John Paul Stevens’ October 3rd visit to Chicago-Kent is now available to watch on the school’s YouTube channel or in the playlist embedded below. Watch Justice Stevens’ lecture and audience Q&A on “The Ninth Vote in the Stop the Beach Case” as well as an introduction to Justice Stevens’ history by Chicago-Kent faculty members Carolyn Shapiro, Steven Heyman, and Nancy Marder.

    Under Watchful Eyes Video

    by  • October 25, 2012 • Faculty Workshops/ Conferences, Multimedia • 0 Comments

    Video from October 5th’s privacy and technology conference, Under Watchful Eyes: The Technologies That Track, is now available in the playlist embedded below. Watch presentations by a number of distinguished speakers, including Chicago-Kent faculty members Richard Warner and Henry Perritt.

    The conference was hosted by Chicago-Kent’s Center for Information, Society and Policy and focused on the privacy issues created by the ever-increasing use of geo-location data. For more information and session summaries, see previous blog entries on the conference (Part 1 and Part 2).

    Haugh on Capital Mitigation Strategies

    by  • October 24, 2012 • Faculty Scholarship • 0 Comments

    Visiting Assistant Professor Todd Haugh has recently uploaded a new article to SSRN. “Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases” (forthcoming in 62 American University Law Review) examines the ways in which federal white collar defendants might employ mitigation strategies used by successful capital defense teams.

    The article was also highlighted on the Sentencing Law and Policy blog.

    Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

    The answer lies in how attorneys use sentencing mitigation strategies. This Article contends that federal white collar defendants have failed to effectively use mitigation strategies to lessen their sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes. The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients. After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases. The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.

    Read the article on SSRN here.

    Buccafusco Article in Top 10 New IP Downloads

    by  • October 23, 2012 • Faculty Scholarship • 0 Comments

    The patent and IP blog Written Description recently compiled a list of the most downloaded IP papers posted to SSRN in the last 60 days. Professor Christopher Buccafusco’s article “Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension” (co-authored with Paul Heald) appeared on the list. Read the list here.

    Read Professor Buccafusco’s article on SSRN here.

    Privacy and Tech Conference Highlights, Part 2

    by  • October 20, 2012 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    On Friday, October 5, Chicago-Kent hosted Under Watchful Eyes: The Technologies that Track, a conference focusing on the privacy issues created by the ever-increasing use of geo-location data. Speakers from inside and outside the field of law—including an artist and a retired US Air Force major general—analyzed how decisions about the balance between privacy and the benefits of information processing are made and  how they should be made. The conference was hosted by Chicago-Kent faculty members Lori Andrews and Richard Warner and the Center for Information, Society and Policy. Professor Warner and Chicago-Kent faculty member and former dean Henry Perritt presented at the conference. Visit the conference home page for background, the conference schedule, and speaker biographies. For more on the conference, see the prior post  “Privacy and Tech Conference Highlights, Part 1.”

    What is the Right Legal Regime?

    In the third panel of the conference—“What is the Right Legal Regime?”—speakers examined how the law should best respond to the need to protect privacy while realizing the benefits of tracking technologies. Panelists addressed the question, What combination of constraint and facilitation is the right one in the Web 3.0 world?

    Professor Henry Perritt addressed specific concerns on the topic of law and privacy in technology.

    As technologies change, Perritt observed, the accompanying risks change as well. Geo-location and other advanced technologies don’t just reveal our actions and locations—they reveal something fundamental about who we are and have the potential to exploit what lies at the center of our personhood. Given this fact, Perritt argued, it is government surveillance, and not commercial advertising, that poses the greatest invasive threat to our personal liberty.

    Contrary to traditional opinions, the government’s access to our communications transactions is more harmful than its access to our communications content. Surveillance tools like traffic analysis can track a person’s Internet history and other data like his human associations, subject matter interests, and physical location. These pattern analyses can reveal more about a person’s behavior than the actual content of emails or phone calls.

    The proliferation of this personal transaction data increases the need to securely protect against cyberterrorism threats online. However, government monitoring of possible cyberthreats becomes as problematic as the cyberthreats themselves, as the government imposes technological controls that subject everyone to intrusive surveillance. This type of activity creates an atmosphere of paranoia and suspicion injurious to personal liberty.

    Professor Perritt also offered thoughts on the role of law in protecting privacy. Certain proposed legislative measures, like the Cyber Intelligence Sharing and Protection Act (CISPA), represent the wrong approach to privacy protection. CISPA sought to make it easier for the private sector to disclose data to the federal government; if passed, the act would have weakened cybersecurity and made it easier for the government to engage in invasive surveillance. Equally troubling, CISPA granted broad immunity to the private sector. Perritt suggested that accountability measures be put in place for the government and for private corporations to protect against exploitation of privacy. For instance, expanded conditions for judicial intervention would limit the government’s ability to acquire personal transactional information. Also, enhancing tort liability for marketplace corporations who fail to implement the best security practices with personal data would create tighter security and would offer more effective protection against cyberattacks.

    Visit Professor Perritt’s Bepress and SSRN pages to read more of his scholarship on technology and privacy, including “The Internet at 20: Evolution of a Constitution for Cyberspace.”

    Professor Perritt is the author of Digital Communications Law (Aspen Publishers: 2012), one of the leading treatises on Internet law.