Current Issue

Number 4


The Lost “Art” of the Patent System

Sean M. O’Connor | 2015 U. Ill. L. Rev. 1397

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production. The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over the proper scope and nature of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) ‘‘art.’’

The Market For Leadership In Corporate Litigation

Jessica Erickson | 2015 U. Ill. L. Rev. 1479

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will

control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination

into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the ideal imagined by courts and commentators. The reliance on private ordering forces lawyers to agree to overly complicated leadership structures. These structures in turn cause lawyers to underinvest in litigation, encouraging

holdouts and opportunism at the negotiating table. It need not be this way. Other types of complex litigation, from small-scale consumer class actions to multidistrict securities class actions, have successfully avoided such problems. The time has come for corporate law to draw on these insights and develop a new market for leadership in corporate litigation. In the end, leadership is far too important to be left to the lawyers.

The Once and Future Irrelevancy of Section 12(g)

Usha R. Rodrigues | 2015 U. Ill. L. Rev. 1529

Among more fundamental reforms, the JOBS Act of 2012 amended Section 12(g) of the Securities Exchange Act and sought to increase the number of shareholders (from 500 to 2000) that a firm must have before it must make public disclosures. Argument on the floor of Congress focused on the undue burden the provision placed on companies. This Article examines data that invalidates those anecdotal concerns. Indeed, the data reveal important insights: First, my handcollected

dataset shows that, contrary to public concerns about Section 12(g)’s onerous burdens, it only affects a few firms—(less than three percent of those going public). Second, my research relates to questions of the relative merits of Congress and the SEC with respect to fact-finding and the risk of capture. Finally, the Article answers the critical question the JOBS Act obscured: when, if ever, should we force private firms public?

The Economics of Plaintiff-Side Personal Injury Practice

David A. Hyman, Bernard Black, Charles Silver | 2015 U. Ill. L. Rev. 1563

Little is known about the economics of plaintiff-side law firms, which typically work on a contingency fee basis. We begin here to fill that gap. We report on the fees received by 124 plaintiff-side personal injury firms located in four states (Illinois, Texas, and two additional undisclosed states). At all of the firms, cases with modest fees may help to keep the lights on, but occasional ‘‘blockbuster’’ cases account for an overwhelming percentage of earned fees. A one-third contingency fee is the most common arrangement but is not always collected ex post; when recoveries are low, firms often reduce or waive their fee. We also estimate the impact of various statutory contingency fee caps on these firms; the effect varies, depending on cap design and casemix. But, many contingency fee caps dramatically affect the economics of plaintiff-side personal injury practice.


E-Discovery Realpolitik: Why Rule 37(e) Must Embrace Sanctions

John E. Motylinski | 2015 U. Ill. L. Rev. 1605

Federal Rule of Civil Procedure 37(e), detailing the consequences of the loss of electronically stored data to be produced in discovery, offers little guidance as to what constitutes sanctionable activity. This uncertainty directly translates into added costs and burdens in the ediscovery process. In response to these concerns, proposed amendments to Rule 37(e) were drafted in 2013 with the intent of decreasing the costs of discovery, in part by decreasing the prevalence of sanctions. This Note argues that the Proposed Rule 37(e)’s attempt to decrease sanctions will not be effective; furthermore, that such a result is not desirable. Proposed Rule 37(e) offers no improvements upon the current 2006 rule, and an effective Rule 37(e) must use sanctions as a tool to develop a unified culpability requirement and delineate and clarify sanctionable conduct and encourage cooperation in the discovery process. This Note recommends that Rule 37(e) must undergo a paradigm shift: it must embrace sanctions as a tool rather than as a liability. It is only then that the Rule can reduce E-discovery costs.

Demolishing the Schoolhouse Gate: Tinkering with the Constitutional Boundaries of Punishing Off-Campus Student Speech

Anika Hermann Bargfrede | 2015 U. Ill. L. Rev. 1645

Given the increasing ubiquity of social media, school officials’ scrutiny of student communications has expanded into the online realm. In fact, news reports reveal that many school districts have punished students for their online actions and communications. Schools argue that monitoring online speech protects students from bullying, suicidal threats, and vulgarity. Contrarily, students and activist groups allege that these monitoring activities invade students’ First Amendment free speech rights. This Note asks whether school officials can punish students for their communications that take place beyond the traditional “schoolhouse gate.” As a result of the Supreme Court’s failure to address the constitutional boundaries of off-campus student speech, the U.S. Circuit Courts of Appeals have crafted myriad, often conflicting, approaches to apply the Supreme Court’s traditional First Amendment jurisprudence to this issue. This Note discusses the Supreme Court’s precedent regarding First Amendment protections for student speech, including the landmark Tinker decision that first established students’ First Amendment protections, and examines how federal courts have tackled off-campus student speech. This Note recommends that the Supreme Court analyze almost all student speech cases under a heightened version of a two-pronged Tinker test that focuses on the speech and the intent of the speaker rather than the physical location of the speaker. This “Tinker plus” test honors the philosophical role of the freedom of speech as a prerequisite to democracy, recognizes the evolving forms of interpersonal communication, and respects practical concerns of cyberbullying and electronic harassment.

Extending Batson to Sexual Orientation: A Look at Smithkline Beecham Corp. v. Abbott Labs

Kristal Petrovich | 2015 U. Ill. L. Rev. 1681

In Batson v. Kentucky, the Supreme Court held that discriminatory use of peremptory challenges by a prosecutor to strike a black juror based solely on race violated the Equal Protection Clause. This Note argues that Batson should be extended to prohibit discriminatory use of peremptory challenges based on sexual orientation. TheNinth Circuit has adopted this approach, recently holding both that Batson extends to sexual orientation and that heightened scrutiny applies to such challenges. The Supreme Court should uphold the Ninth Circuit’s decision as an important step on the road to securing gay rights both in the courtroom and elsewhere.