• Faculty Commentary

    Commentary on scholarship, current events, and other news by Chicago-Kent faculty.

    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…)

    Prof. Shapiro: “Gerrymandering the Constitution: More than statehouse politics at risk”

    by  • October 2, 2017 • Faculty Commentary • 0 Comments

    In advance of Tuesday morning’s Supreme Court oral arguments in Gill v. Whitford, Professor Carolyn Shapiro has published an opinion piece in The Hill outlining the dangers of “extreme partisan gerrymandering.” An excerpt from the introduction follows: The primary issue in Gill is whether partisan gerrymandering can be challenged in court at all and, if so,...

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    Financial CHOICE Act v. 2: Reducing Protections Against Systemic Risk

    by  • May 25, 2017 • Faculty Commentary • 0 Comments

    By Alexander Dill Clearing Corporation Charitable Foundation Practitioner in Residence The nearly 600-page Republican bill to deregulate the financial markets moved forward in the House earlier this month, exiting the Financial Services Committee on May 4. Emboldened by the results of the 2016 election, the bill takes a considerably more aggressive approach than the...

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    Whistleblowing Update: Tone Deaf at the Top and Regulatory Lapses

    by  • April 27, 2017 • Faculty Commentary • 0 Comments

    By Alexander Dill
    Clearing Corporation Charitable Foundation Practitioner in Residence

    Despite the fact (or perhaps due to the fact) that whistleblowing can be a very effective policing mechanism against wrongdoing, confidential employee hotlines often exist in obscurity, as a New York Times article pointed out concerning the Fox News Bill O’Reilly scandal. It cites one employment expert to the effect that companies often “bury information about how employees can file confidential complaints and for employees to be completely unaware of the existence of hotlines.” This is despite the fact that several federal laws require implementation of an effective whistleblowing compliance regime, ranging from Sarbanes-Oxley, the Dodd-Frank Act, and the SEC’s whistleblower rules. But it is one thing to mandate and another to create a culture of compliance that actively supports employees’ whistleblower rights. (more…)

    Prescriptive, “Rules-Based” Regulation Is Key to Enhancing Cybersecurity in Financial Institutions

    by  • March 10, 2017 • Faculty Commentary • 0 Comments

    By Alexander Dill
    Clearing Corporation Charitable Foundation Practitioner in Residence

    There is much debate in the compliance community about the virtues and drawbacks of a “principles-based” versus a “rules-based” regulatory approach in ensuring effective compliance with regulatory obligations. On the one hand, in “principles-based” regulation agencies establish broad but well-articulated principles that a business is expected to follow. There is clarity about the regulatory objective, but not how to design and implement a compliance system that accords with it. (more…)

    Governor Tarullo’s Departure Will Create a Vacuum in Bank Regulation: How Big Will it Be?

    by  • February 17, 2017 • Faculty Commentary • 0 Comments

    By Alexander Dill Clearing Corporation Charitable Foundation Practitioner in Residence Governor Daniel Tarullo’s resignation as governor of the Federal Reserve Board has important implications for future bank regulation and supervision. Its most likely medium-term effect is to reduce the priority the Fed has given to this component of its mandate. Governor Tarullo has played...

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    Dean Krent: Thoughts on the February 7 Ninth Circuit Oral Argument on the Immigration Executive Order

    by  • February 8, 2017 • Faculty Commentary, Presidential Transition • 0 Comments

    By Dean Harold Krent First, kudos to the Ninth Circuit Court of Appeals for livestreaming the oral argument.  The technology was not perfect, but opening the hearing to all citizens represents a needed step toward transparency in light of the controversy engendered by the Executive Order. Second, the panel was prepared and peppered both...

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