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Precedential Decisions at the PTAB: An Endangered Species?
Get PDFThis Article describes the USPTO’s practice of designating certain opinions as precedential, informative, or representative and compares it to the practice of issuing precedential opinions at other agencies that conduct quasi-judicial proceedings. The Article explores the impact of these agency practices on stare decisis. It concludes that the USPTO should simplify its designation process, increase the number of precedential opinions, and by doing so improve consistency and predictability
Neither Cruel Nor Unusual: An Hour and a Half Delay in Treatment Can Now Amount to Deliberate Indifference
Get PDFThe Eighth Amendment of the U.S. Constitution proscribes cruel and unusual punishment. To state a cognizable claim, a plaintiff must allege that a prison official or medical professional was deliberately indifferent to his or her objectively serious medical need. In Lewis v. McLean, the Seventh Circuit analyzed whether a nurse and prison official’s hour and a half delay in treatment created a triable issue as to whether they acted with deliberate indifference. The plaintiff alleged that the defendants showed deliberate indifference to his severe back pain by delaying his access to medical care. The defendants, on the other hand, purported that they were not deliberately indifferent, rather, the delay was caused by the plaintiff’s inability to follow their safety commands
A Fresh Look at Title VII: Sexual Orientation Discrimination as Sex Discrimination
No full textSince 2006, the Illinois Human Rights Act has prohibited discrimination in employment because of an employee’s sexual orientation or gender identity. Until 2017, employees discriminated against because of their sexual orientation had no federal cause of action, however. In a landmark decision, Hively v. Ivy Tech, the Court of Appeals for the Seventh Circuit became the first appellate court to hold that federal law’s prohibition of sex discrimination in the workplace also proscribed sexual orientation discrimination. The Hively decision is a substantial departure from decades’ worth of Seventh Circuit precedent and created a split between the circuits. This Article examines the Seventh Circuit’s interpretation of Title VII and how it may auger the future of sexual orientation discrimination claims under federal law
Chasing Echos of Obscenity Exceptionalism in Copyright: Recent Swarm Cases
Get PDFRecent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to them in swarm cases appear willing to accept what was believed to be their governing principles without consideration of the cautions expressed by earlier courts
The Promise and Perils of Algorithmic Lenders’ Use of Big Data
Get PDFTens of millions of Americans lack access to traditional forms of credit and must rely on payday and pawn loans instead. “Algorithmic lending 2.0” promises to enable fintech companies to lend to those excluded from traditional forms of credit. Version 2.0 algorithmic lenders claim to use Big Data and machine learning to increase credit access by making better predictions about prospective borrowers’ creditworthiness and decreasing the cost of credit. Supporters also claim that algorithmic lending 2.0 removes human bias from the financial services sector. Detractors have cast doubt on both claims, arguing that there is scant evidence that algorithmic lending 2.0 expands credit access in non-predatory ways or that substituting algorithms for loan officers reduces discrimination. This Article evaluates the existing regulatory framework to determine if regulation can support the promise of algorithmic lending 2.0 without imperiling the vulnerable
The State Giveth and Taketh Away: Race, Class, and Urban Hospital Closings
Get PDFThis essay uses concepts from Bernadette Atuahene’s book We Want What’s Ours: Learning from South Africa’s Land Restitution Program to examine the trend of urban hospital closings. It does so by focusing specifically on the history of Martin Luther King, Jr. Community Hospital, a charitable hospital in South Los Angeles, California that emerged after the Watts riots in 1965. The essay illustrates how Professor Atuahene’s framework can generate unique questions about the closing of urban hospitals, and public bureaucracies more generally. The essay also demonstrates how Martin Luther King, Jr. Community Hospital’s trajectory hones some of Atuahene’s concepts in ways that can enhance the ways scholars write and think about the loss of property, the loss community institutions, and ways to remedy such losses
Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study
Get PDFThis is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, Professor Hasen argues that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.” Scalia’s views on self-dealing appeared to reflect rather than drove his legal analysis. Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law