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Vol. 38, No. 4
Get PDFPandemic State: Navigating the State of Illinois\u27 Response to the Challenges of Covid-19 in the Workplace
by Jane Flanagan and Scott Lerner
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1122/thumbnail.jp
Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur
No full textThe nature and content of intellectual property (IP) law, which is heavily contingent on the state of technology and on social and market developments, has always been subject to ongoing transitions. How those transitions are effected and the shape they take is crucial to the ability of IP to achieve its stated goals and provide the necessary climate for investment in creativity, innovation and brand differentiation. Yet the need for change can run headlong into a desire for coherence. A search for coherence tests the limits of the concept of “intellectual property,” is imperiled by overlaps between different IP regimes, and calls for a unifying normative theme. This volume assembles contributors from across IP and the globe to explore these questions, including whether coherence is desirable. It should be read by anyone interested in understanding the conceptual underpinnings of one of the most important and dynamic areas of the law
A Global Constitutional Crisis (forthcoming)
No full textWhy do judges commonly predicate their own decisions on earlier decisions authored by others? What makes those otherwise discrete and separate decisions of the past nonetheless hang together and form a powerful system of reference to subsequent cases? While legal justification for legal precedent remains remarkably limited, a leading account attributes this ostensibly puzzling authority to its efficiency-enhancing properties. However, conservation of judicial resources can hardly motivate judges to abide by past decisions. Moreover, the consequentialist nature of the rationalist explanation tends to exaggerate the predictive force of legal precedent. No legal precedent guarantees a particular court ruling, while an overarching logic of judicial efficiency might allude in such direction. In an effort to fill such analytical gap, this Article reconstructs legal precedent as a socio-anthropological phenomenon, i.e., “ritual.” The central claim of this Article is twofold. First, legal precedent is explicable in cultural terms, such as symbol and language; second, legal precedent holds a structural-systematic value as it exists for its own sake. This novel approach to legal precedent, this Article argues, can enrich mindsets of legal scholars and practitioners and help them expand their discursive horizons, so as to produce globally relevant decisions. This Article applies the new framework to the jurisprudence of the World Trade Organization (WTO) in order to reconfigure the boundaries of legal precedent in a global dimension
Limits on the Unitary Executive: The Special Case of the Adjudicative Function
No full textRecent Supreme Court cases embracing the unitary executive ideal have imperiled the independence of Administrative Law Judges (ALJs), who as “Officers of the United States” help resolve disputes between the federal government and private parties. Although ALJs long have been protected from “at will” removal under the Administrative Procedure Act, the Court in a number of decisions has stressed the importance of close presidential control over all “Officers of the United States.” Many have attacked the Supreme Court’s embrace of the unitary executive theory as ahistorical, misguided, or both. My argument instead is that the functional underpinnings of the unitary executive formulation under Article II, as well as Supreme Court precedent, readily can be reconciled with independent judging within the executive branch. The Court has stressed that the President must stand accountable in the public eye for the executive branch’s exercise of authority delegated from Congress, but not for all authority. Indeed, the executive branch itself repeatedly has drawn a line between the exercise of economic, social, and political policymaking that the President under Article II must manage and professional authority that no matter how important can be exercised by individuals, whether employees or “Officers,” shielded from the President’s plenary removal authority. I use the examples of the Federal Tort Claims Act and the Federal Service Labor-Management Relations Statute to illustrate that distinction and conclude that, under any rubric, ALJ factfinding sets no new economic or social policy, but rather reflects professional judgment in applying previously set policy to the facts at hand
Explaining the Whys: Allowing Battered Woman Syndrome in Aid of a Duress Defense
Get PDFThe United States’ judicial system is firmly rooted in the proposition that all people are innocent until proven guilty. But because of the rampant stigmatization and misconceptions surrounding abuse, women claiming affirmative defenses and proffering evidence stemming from such trauma are tried with the cards stacked against them. As such, courts should allow evidence of mental health conditions like Battered Woman Syndrome when providing affirmative defenses for crimes such as duress to mitigate the pervasive reality of juror bias within the judicial system. In United States v. Dingwall, the Seventh Circuit Court of Appeals joined the District of Columbia, Sixth, and Ninth Circuits in holding that evidence of battering and its effects can be offered to prove a duress defense. On the contrary, the Fifth and Tenth Circuits have expelled this conclusion, opting for an objective standard, and dispelling any consideration of a defendant’s subjective circumstances. This wholly denies the staggering effects abuse can have on a victim’s mental health and decision-making capabilities. Furthermore, it turns a blind eye to the fact that jurors often bring misunderstanding and bias towards battered women, born from misconceptions and limited exposure. As a result, rejecting this evidence places victims of abuse at a disadvantage and handicaps juries from making fully informed decisions. In an ideal world, jurors would have no prejudices towards defendants and would not allow their personal presumptions influence their views on the evidence presented to them. But because that level of compartmentalization is a pipe dream, courts have the duty to allow evidence that will attempt to negate these preconceived notions, thereby allowing defendants the best chance of trying their case on a clean slate. Shedding light on the life altering price abuse has on victims will hopefully act to destigmatize mental health conditions and help ensure justice for all
I Always Feel Like Somebody\u27s Watching Me Prolonged Use of Warrantless Video Surveillance and the Fourth Amendment
Get PDFAs technology innovates, Fourth Amendment protections potentially become weaker and allow law enforcement to surveille in new ways. Because of those expanded options, the notion of a reasonable expectation of privacy shrinks, leading to further surveillance by police without a warrant. It is essential to reevaluate what is deemed acceptable under the Fourth Amendment when it comes to prolonged warrantless surveillance by law enforcement. The Supreme Court has evaluated this issue for decades, attempting to adapt Fourth Amendment search analysis to the changing landscape of technological innovation. In a case of first impression, the Seventh Circuit erred by holding that eighteen months of warrantless video camera surveillance did not violate the defendant\u27s Fourth Amendment rights in United States v. Tuggle. The court failed to properly apply the Katz Test long used by the Supreme Court; it did not consider the precedent it set by permitting this lengthy surveillance; and, it failed to review the practical impact of prolonged warrantless surveillance, especially in the time of COVID-19 lockdowns. This note suggests that, while a bright line rule of how long is acceptable will not work, eighteen months is longer than what society would reasonably expect law enforcement to be able to do. Further, it argues that Fourth Amendment analysis can and should protect individuals from advancing technology rather than relying on outdated cases and strictly adhering to precedent. The essence of Fourth Amendment search cases is the same no matter what technology is at issue: there is a limit to what police can do and eighteen straight months of surveillance absent a warrant goes too far
Narrowing the Universe: A Machine Learning Approach to Patent Clearance
Get PDFCompanies cannot reliably predict which patents are likely to be asserted against them. If they could, they would be better able to quantify and mitigate their own patent infringement risk. We used machine learning methods, informed by legal scholars’ understanding of relevant patent traits, to improve on prior attempts to predict litigation. We built primarily on Colleen Chien’s Predicting Patent Litigation. Chien used traits from a patent’s legal history and developed a method of prediction based on the traits acquired before litigation, but not after. She demonstrated that the traits acquired before litigation are useful predictors. Evaluating Chien’s approach, we determined that her logistic regression model was generalizable—that is, not overfit to her training sample—though it does not perform as well on real datasets as her matched-pairs evaluation suggested. We found that year-over-year changes in patenting and litigation will hinder real-world prediction with this approach, but only modestly. Building a much larger dataset of newer patents, and selecting machine learning models tailored to the task, we improved on Chien’s results. Our random forest model had a 7.8% greater area under the precision-recall curve, and it could allow a company to narrow its patent clearance search to a set of patents up to 34% smaller, compared to Chien’s logistic regression approach. We report our results on a random sample of patents using standardized metrics, providing a baseline for future work predicting patent litigation
AI Output: A Human Condition that Should Not be Protected Now, or Maybe Ever
Get PDFAI is usually considered to be a form of automatic and autonomous work, but when applied to the creation of literary and artistic works, challenges arise in deciding whether the AI is the de facto author of its output and whether AI outputs or AI-generated products should be protected under the copyright system. This article argues that these outputs should be human creations because the working principles of AI determine that AI functions merely as a mathematical tool applied by humans to not only conceive of but also to execute the creation of AI outputs. The creativity reflected in these outputs also qualifies them as copyrighted works. However, this article disagrees with faith-based opinions claiming that granting protection to AI outputs will be good for the public, and it adopts an evidenced-based approach to demonstrate that the protection of these outputs is neither useful nor necessary for achieving the copyright system’s goal of promoting the public interest and other social benefits
