• About C-K Editor

    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

    A WTO’s “Kompetenz-Kompetenz” Moment

    by  • April 9, 2019 • Faculty Commentary, Scholarship • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on April 5, 2019]


    This is a supplemental post to Simon’s earlier one that provides an excellent summary of the Russia – Traffic in Transit panel report. Here are some aspects of the panel report that I found interesting and worth further reflection.

    First, one might say that this landmark decision is characteristic of a “constitutional” moment to the WTO. I understand that the use of “c” word here might be frowned upon in some circles, both legal and political. However, GATT Article XXI is not just a mundane, technical interpretive issue to the WTO. It is a matter of allocating power between the WTO as an autonomous institution and its member. If I exaggerate a little bit, this particular dispute echoes potential existential angst from the WTO. What if the panel had accepted Russia’s original claim and declared Article XXI as a “self-judging” provision? Constitutional consequences would have been dire. The WTO would have opened the jurisdictional Pandora’s Box, invited massive abuses and therefore undermined its own rationale (and identity). (more…)

    Are Trade Wars Missing the Point? (Part I)

    by  • February 6, 2019 • Faculty Commentary, Scholarship • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on February 5, 2019]


    The answer might be in the affirmative according to the recent report by McKinsey Global Institute, titled “Globalization in Transition: The Future of Trade and Value Chains.”  Here is a summary of its main findings.

    1. “Goods-producing value chains have grown less trade-intensive.”
    2. “Services play a growing and undervalued role in global value chains.”
    3. “Trade based on labor-cost arbitrage is declining in some value chains.”
    4. “Global value chains are growing more knowledge-intensive.”
    5. “Value chains are becoming more regional and less global.”

    On its face, this report might seem to play the same gloomy tune as “slowbalization.”  However, the McKinsey report does not equate this new phenomenon with the decline of globalization.  On the contrary, it attributes the phenomenon as the economic maturation of emerging economies, such as China, India, Thailand, Malaysia and Indonesia, which are “now consuming more of what they produce.”  By 2030, developing countries’ consumption will exceed a half of global consumption. (more…)

    The Dawn of the e-WTO

    by  • January 27, 2019 • Scholarship • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho


    On the sidelines of the Davos World Economic Forum this week, seventy six WTO member countries agreed to launch a negotiation on electronic commerce.  Yes, we all know that e-commerce has recently been skyrocketing, becoming part of our everyday lives.  Meanwhile, the WTO has been criticized for having failed to provide effective multilateral rules to regulate e-commerce.  I see a bit of déjà vu from the Uruguay Round here, in particular within the context of the North-South tension.  Developed countries such as the United States, the European Union and Japan are spearheading this new initiative, while developing countries such as China and India seem to be lukewarm about the initiative.  China joined the initiative with the reservation that developing countries’ concerns must be reflected. India argued that the Doha Development Round must be addressed before starting a new set of negotiations in the WTO. (more…)

    The Resiliency of the WTO Dispute Settlement Mechanism (Or Not)

    by  • January 12, 2019 • Faculty Commentary, Scholarship • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on January 10, 2019]


    Many worry that the current United States–China trade wars, and negotiations therefrom, might undermine the WTO dispute settlement mechanism (DSM).  Curiously, however, both the United States and China have not completely bypassed the WTO DSM.

    In fact, both countries have invoked the WTO DSM in tandem with their unilateral/bilateral engagements outside of the WTO.  For example, China sued the United States for the latter’s punitive tariffs against the former (here and here).  The United States also filed a complaint against China regarding the latter’s alleged violation of TRIPS, in addition to its execution of the Section 301 procedure on the same complaint.

    One might surmise that the U.S.’ such actions are in contrast to its recent blocking of new Appellate Body members.  So, can we say comfortably that the WTO DSM is resilient?  Or, are these all about merely anteing up political rhetoric?

    Epic Systems v. Lewis: The Movements’ Time is More Clear Now

    by  • June 5, 2018 • Faculty Commentary, Featured Posts • 0 Comments

    photo of US Supreme Court by Matt Popovich

    by César F. Rosado Marzán In Epic Systems v. Lewis, Supreme Court Justice Neil Gorsuch and four conservative Justices determined that class action waivers are enforceable, not least because of the Federal Arbitration Act’s (FAA) strong protection of arbitration agreements. Class action waivers are enforceable despite the National Labor Relations Act (NLRA), which provides workers...

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    “Swatting” and Section 1983: Some Preliminary Thoughts

    by  • February 26, 2018 • Faculty Commentary • 0 Comments

    by Professor Sheldon Nahmod

    Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

    This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances. (more…)

    Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

    by  • February 24, 2018 • Faculty Commentary • 0 Comments

    by Professor Sheldon Nahmod

    Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

    Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result? (more…)

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

    by  • April 27, 2016 • Scholarship • 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.