• Faculty Scholarship

    New Chicago-Kent faculty scholarship.

    New Book by Professor William Birdthistle Critiques Mutual Funds Industry and How Americans Save for Retirement

    by  • June 29, 2016 • Faculty Scholarship • 0 Comments

    Empire of the Fund book cover artIn his new book, Empire of the Fund: The Way We Save Now (Oxford University Press 2016), Professor William Birdthistle exposes and critiques what he calls the richest and riskiest experiment in our nation’s financial history. He illustrates the flaws in the hypothesis of that experiment: that millions of ordinary, untrained, and busy citizens can successfully manage trillions of dollars in a financial system governed by powerful financial institutions.

    Professor Birdthistle explores the obstacles that individual investors face when using mutual funds to save and offers three solutions for how to safeguard their individual financial destinies as well as the nation’s fiscal strength.

    A single generation ago, many Americans enjoyed the prospects of paying for their golden years with a steady stream of income from their pension plans. Today, only 3 percent of U.S. private-sector workers are covered solely by pensions, while one-third of American households have no retirement savings at all. With the demise of pensions and the rise of 401(k) plans, Americans today will have to support themselves on the returns however high or low of their personal investment accounts.

    To protect their financial security, Professor Birdthistle argues that Americans will need “a greater understanding of mutual funds, more transparency from the financial firms that manage them, and stronger enforcement by prosecutors of the regulations that govern funds.” He proposes opening the federal Thrift Savings Plan to all Americans so they can benefit from a low-cost, well-run saving plan.

    Find out more about Empire of the Fund at the book’s website, and watch the video trailer of Professor Birdthistle introducing the book in verse.

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

    by  • April 27, 2016 • Faculty 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.

    Gerber Article Wins Antitrust Writing Award

    by  • April 8, 2016 • Faculty Scholarship • 0 Comments

    At the 2016 Antitrust Writing Awards Gala Dinner on April 5, Professor David Gerber  was recognized for writing one of the best “Cross-Border” transnational antitrust academic articles published in peer-reviewed journals in 2015.

    During an interview at the event, Professor Gerber discussed “two cloudy subjects” he believes are very important in international antitrust.

    “Global competition law convergence: Potential roles for economics”

    by Distinguished Professor David Gerber

    Research Handbook on Comparative Law and Economics, Chapter 9, 2016

    Read the full chapter

    Rosado Marzan on Knowledge@Wharton, BBC Newshour

    by  • March 16, 2016 • Faculty Scholarship • 0 Comments

    Last week, Professor Cesar Rosado Marzán appeared on University of Pennsylvania’s Knowledge@Wharton to discuss the ongoing NLRB labor law disputes with McDonald’s. From the interview:

    McDonald’s appears to be in a tight spot, with problems looming whichever direction it goes. “If McDonald’s is found to be liable for the labor law violations of its franchisees, then as a joint employer it could end up at the bargaining table,” said Cesar . . . If, on the other hand, it doesn’t support the franchise operators, he agreed that it might end up earning the latter’s wrath.

    Prof. Rosado Marzán continued,

    “If McDonald’s is found to be essentially liable for the labor law violations of a franchisee, it means that it’s a joint employer according to the NRA. And if such, then it may end up on the bargaining table if, at some point, McDonald’s workers decide to bargain collectively […] with the corporation.” (more…)

    Introducing The Society of Investment Law

    by  • February 26, 2016 • Faculty Scholarship • 0 Comments

    CK Banner 2016

    By William Birdthistle


    Legal scholars, practitioners, and regulators of investment funds have a new learned society to encourage scholarship in their field.  The Society of Investment Law is an international organization of academics and attorneys interested in the study of legal issues relating to investors, advisers, and investment funds.  The society will host an annual meeting to promote the discussion of developments in this field.

    For the past eight years, Professors Tamar Frankel of Boston University School of Law and William Birdthistle of Chicago-Kent College of Law have co-hosted an annual roundtable discussion about developments in investment law.  Keynote speakers at those events have included Professor John Coates of Harvard Law School, reporter Daisy Maxey of the Wall Street Journal, Nell Minow of the Corporate Library, Professor Andrew Lo of the MIT Sloan School of Management, and Robert Plaze of the SEC’s Division of Investment Management.

    As an institution, the Society of Investment Law will build upon these roundtables to encourage scholarship and discussions about investment law.  The society’s founding board of directors includes Frankel, Birdthistle, Coates, and Mercer Bullard of the University of Mississippi School of Law, Quinn Curtis of the University of Virginia School of Law, Deborah DeMott of Duke University School of Law, Jennifer Taub of Vermont Law School, Dirk Zetzsche of the University of Liechtenstein, and John Morley of Yale Law School.  The inaugural officers of the society are Frankel as chair of the board, Birdthistle as president, Morley as vice president, and Taub as secretary.

    The society’s official web site is http://societyofinvestmentlaw.org.

    Professor Koch on Updates to the Common Rule

    by  • January 6, 2016 • Faculty Scholarship • 0 Comments

    By Valerie Gutmann Koch


    On January 5, I submitted, along with Jessica Roberts, Associate Professor of Law and Director, Health Law & Policy Institute at the University of Houston Law Center, comments on the Notice of Proposed Rule Making (NPRM) for revisions to the Common Rule (45 CFR 46), the regulations that govern the majority of human subjects research in the United States. These revisions will be the first since the Common Rule was promulgated in 1991. Our letter to Jerry Menikoff, the Director of the Office for Human Research Protections (OHRP), focused on three primary deficiencies in the proposed revisions. We therefore encouraged the Department of Health and Human Services (HHS) to: (1) encourage Congress to provide a statutory private right of action for the Common Rule; (2) clarify whether research subjects have a potential commercial interest in the research done on their biospecimens; and (3) eliminate the distinction between biospecimens and personal information and data. The letter is available here.

    Our letter was also featured on the blog for the Yale Journal of Law and Technology (YJOLT).

    Chicago-Kent Scholarship in 2015

    by  • December 17, 2015 • Faculty Scholarship • 0 Comments

    This past year has seen numerous members of Chicago-Kent’s faculty accept awards, publish articles, and push boundaries. As 2015 draws to a close, here are several Faculty Blog posts that highlight the outstanding scholarship at IIT Chicago-Kent.

    January – Martin Luther King, Jr. and the Law

    Martin Luther King, Jr. Lincoln Memorial

    Martin Luther King, Jr. at the Lincoln Memorial, August 28, 1963 | Wikimedia Commons

    Professor Christopher Schmidt unpacked MLK, Jr.’s commentaries on the relationship between law and justice.

    King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

    Read the entire post here.

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

    As an advisor for an amicus brief in Elonis v. United States, Professor Heyman’s commentary on the case is worth reading in light of investigations into the Facebook habits of the San Bernardino shooters.

    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 […]

    Read the rest here.

    August – NLRB Rules That Northwestern University Football Players Cannot Unionize

    Professor César F. Rosado Marzán’s commentary on the NLRB’s union policies was both timely and relevant.

    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.

    Read the whole post here.

    October – SCIPR Conference

    SCIPR_0167In September, Chicago-Kent hosted the sixth annual Supreme Court IP Review Conference, which brought together scholars and law practitioners of all kinds. An October Faculty Blog post showcased photos and recordings of the Conference, which featured the Honorable M. Margaret McKeown speaking on copyright and the First Amendment.

    View the entire post here.

    May / November – Faculty Perspectives

    Faculty-Perspectives-Spring-2015 coverFP Fall 2015 Cover

     

     

     

     

     

     

     

     

     

    Two issues of Faculty Perspectives were released this year. The Spring 2015 issue focused on law, gender, and society, while the Fall 2015 issue featured boundary-pushing work.

    Read the Faculty Blog entry on the Spring 2015 issue here.

    Read the Faculty Blog post on the Fall 2015 issue here.

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

    by  • November 20, 2015 • Faculty Scholarship • 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.

    Foster-letter-of-10-30-15

    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 • Faculty Scholarship • 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 • Faculty Scholarship • 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.