Riverside County Homicide Coverup of Nye Frank

Failure to Provide Services Riverside County DA Victims Advocate

Civ. C. 3294 Fraud, malice or oppression 

Fraud- Constructive fraud Constructive fraud exist in any breach of duty which without an actually fraudulent intent, gains advantage to the person in fault, or one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claim in under him, Civ C 1573

Elderly or Frail Vitim in tort or contraact actions for financial abuse in actions for physicaal abuse or neglect. 

Commission of aa tort or breach of contract. Financial abuse may be based on totious conduct or perhpas on duties arising out of a contract. For this reason legal principles relating to elderly or frail victims in tort or contract. There are two general categories of fiduciary relationship. One arises from the relationship of the parties and the law assigns fiduciary duties in those cases or deems that relationship to be a fiduciary relationship. Deemed fiduciary relationship that the law deems to be fiduciary.  The relationship fiduciary owes a duty to utmost good faith as a matter of law. Cal.Jur.3d Fraud and Deceit 11. If the defendant stands in one of these relationships with the victim, the age, infirmity or diminished capacity, ext In shor the vulnerability of the victim -is not the essential to establishing a fiduciary relationship

Example of this was when I called NOVA the national organization for victims and asked how we could get the autopsy and sheriff report. They insisted that the victim advocate should be handling that for us. They would not do anything untill they spoke to Kim and had her handle it. 

DA Victim Advocate-Fiduciary Duty-Essential elements of a confidential relationship: Generally the essence of a confidential relationship depends on whether the plaintiff actual reposed trust and confidence in the other, and whether the other accepted such trust and confidence. 

1. the vulnerability of one party to the other which, 2 results in the empowerment of the stronger party by the weaker which 3 empowerment has been solicited or accepted by the stronger party and 4 prevents the weaker party from effectively protecting itself.

Test -Was the victim vulnerable, would she have ability without victim advocate to be effective in getting help and dealing with the sheriff and DA. Was she obligated to report the misconduct? 

The report of the issue of lost income and no restitution, along with the disclosure of high cost medical issue with chronic health condition. Kim knowing that Lee Frank should have received medical and Counseling , along with elder death review. The loss of income was significant

Neglect 

• The refusal or failure of an individual to fulfill any part of his or her duties or obligations to an older person, including failing to provide an older person with
• necessities such as food, shelter, personal safety, clothing, medicine, and needed care. Neglect may also include the failure of a person who has financial
• responsibilities to provide care such as paying for needed home care services or the
• failure of an in-home paid care provider to deliver needed care.

Emailing: ANTITRUST LAW IN JAMAICA

 

ANTITRUST LAW IN JAMAICA: THE FAIR COMPETITION ACT OF 1993

D ERRICK M C K OY [*]

Copyright © 1996 Journal of Transnational Law & Policy

I. I NTRODUCTION

Jamaica's Fair Competition Act of 1993 ("the Act") is arguably the most important of Jamaica's commercial law reforms in the last twenty years. [1] No other legislation is as likely to significantly affect how business is conducted in Jamaica. [2] The Act's impact is most notable because, in addition to introducing a new regulatory agency called the Fair Trading Commission, [3] the Act has made fundamental changes in antitrust and consumer protection laws. [4] The Act is not merely commercial law reform—it is commercial law revolution.

Because Jamaica has a long tradition of a state-controlled economy, the Act's antitrust reforms are considered radical. The Act introduces Jamaica to antitrust concepts that evolved in the United States over the last 100 years. The antitrust concepts that are radically changing Jamaica's business patterns are very familiar to United States businesses. This discussion will review and compare aspects of United States antitrust law and show how they have been replicated in the Act. [5]

II. T HE E VOLUTION OF J AMAICA ' S F AIR C OMPETITION A CT OF 1993

A. Historical Origins

Jamaica's earliest public policy toward competition promoted competition as an essential part of a modern, market-driven economy. The Green Paper [6] on competition reform expressed the importance of a market-driven economy:

The Government of Jamaica had several times in the past and recently in various fora, articulated its policy objectives to foster, create and enhance an institutional framework which seeks to transform the country to a market driven export-led economy. . . . Competition legislation is central to those policy initiatives and in the promotion of competition policies. [7]

This passage illustrates that Jamaica's competition policy had in the past received nothing more than rhetorical support. Except for advocating antitrust legislation that resembles the United States' approach, Jamaica had not legislatively enacted any antitrust laws. [8]

In the early 1990s, the Jamaican government prepared the Green Paper to begin a public discussion of the proposed changes the government wished to see codified in a new fair competition law. The Green Paper 's antitrust philosophy reflected a strong United States influence because it was prepared with the assistance of an American consultant. Therefore, Jamaica's newest antitrust laws contain antitrust concepts analogous to laws developed and refined in the United States. [9]

Critics alleged that a new fair competition law was unnecessary because Jamaica had not experienced the fair competition problems that antitrust laws aim to rectify. Admittedly, Jamaica's business experience did not contribute to the Act's antitrust provisions in the same way that United States antitrust law is a product of the American business experience and economy. In fact, the very term "antitrust" is a unique product of United States history. A legal fiction called a "trust" was used by Americans in the latter part of the nineteenth century to gain monopolist control of several industries and, according to the Sherman Act of 1890, [10] restrain trade. Even though the problem of the "trust" was unique to American history, Jamaica's legislature nevertheless passed legislation in 1993 to create an antitrust law. The law was titled the Fair Competition Act of 1993 ("the Act"). [11]

Although the Act's provisions are not reflective of Jamaica's economic history, the Act illustrates a desire to make a radical break from the past and to make Jamaica's economy competitive in the twenty-first century marketplace. Therefore, the Act is a deliberate attempt to engineer Jamaica's passage into a market driven economy rather than to ameliorate deficiencies in Jamaican law.

The Act's purpose, like the Sherman Act, is to encourage competition. Traditional economic theory states that competition keeps private markets working in socially desirable ways. A competitive system allows easy entry and withdrawal from the marketplace, encourages the efficient allocation of resources, and stimulates product innovation. Therefore, the Act describes its purpose as providing "for the maintenance and encouragement of competition in the conduct of trade, business and in the supply of services in Jamaica with a view to providing consumers with competitive prices and product choices." [12]

This purpose reflects the influence of the Sherman Act as interpreted by United States Courts. For example, in Northern Pacific Railway Company v. United States, [13] Justice Hugo Black said:

The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic, political and social institutions. [14]

Because the Act is modeled after United States law, the similarity between the Act's self-declared purpose and the court-declared purpose of the Sherman Act is understandable.

B. Legislative Origins

Conceptualizing and articulating an antitrust policy is one thing, but reducing it to legislation can be something else. The regular legislative process in the Commonwealth Caribbean, and certainly in Jamaica, can be characterized as a black box. One knows what goes in, but one is never sure about what will come out.

In the Commonwealth Caribbean, new legislation is often inspired by successful legislation from abroad. The Commonwealth Caribbean has developed a tradition of using expert translators, but does not have a tradition of electing expert, or even capable, legislators. The expert translators' ignorance of the legislative process and tendency to import provisions from other statutes often pro duces strange results.

The Act is no exception. When Jamaica's legislature imported foreign antitrust statutes into the Act, the legislature inadvertently codified some inarticulate language that had lost much of its sub stantive meaning in the translation.

For example, the Act states that no person shall conspire, combine or agree with another person to unduly limit the facilities for transportation, production or manufacture of goods or services. [15] The Act further states that no person shall unduly prevent, limit or lessen the manufacture of any goods, unduly lessen competition in the production, manufacture or supply of any goods, or unduly restrain or injure competition. [16] The question then becomes what "unduly" means in this context. Unfortunately, neither the legislation nor the legislative history offers a definition. It seems that "unduly" is derived from the Canadian legislation imported into the Act, but it is unclear to Jamaicans what the Canadians meant. "Unduly" probably was a compromise appeasing some special interest in Canada, yet it nevertheless comforted someone in the Office of the Parliamentary Counsel of Jamaica to copy it. The point is that literal translation of foreign legislation has compromised the effectiveness of the Act.

Translation problems are not the only difficulties faced when importing statutes. Another problem is the applicability of a foreign solution to a local problem. For example, the Act codifies a threshold requirement for justiciability which functions somewhat like the United States Commerce Clause. In the United States, federal legislation regulating business activity must affect interstate commerce in order to satisfy the Commerce Clause. [17] If the activity does not affect interstate commerce, then the activity cannot be regulated by Congress. Jamaica has no Commerce Clause but must satisfy another criterion. Under the Act, anticompetitive activities can be regulated if they "affect competition in a market." The debate, therefore, focuses on a definition of "market" that is largely influenced by New Zealand law. [18] Whether Jamaica will benefit from New Zealand's idea of a market, or from the United States' idea that only certain anticompetitive activities should be regulated, is uncertain.

III. C OMPARING J AMAICA ' S F AIR C OMPETITION A CT TO U NITED S TATES A NTITRUST L AW

Although there are many similarities between United States law and the Act, the Act differs by focusing on behavior rather than structure. The Act, like the Clayton Act of 1914, [19] prohibits price discrimination, exclusive dealing, tying contracts, and other business structures that limit competition. Unlike the Clayton Act, the Act does not prohibit the creation of monopolies if the monopolies have not actually injured competition. Thus, although the Act generally follows United States antitrust law that prohibits anticompetitive pricing, the Act focuses on behavior rather than structure by dif fering from United States law in three fundamental ways. First, the Act only regulates monopolies that abuse their market strength. Second, the Act does not prohibit mergers that can potentially establish a monopoly. Third, the Act does not address interlocking directorates that can potentially lead to monopolistic collusion. These three differences were not part of Jamaica's initial proposal but found their way into the final version of the Act because Jamaica's legislature modified foreign laws to meet local circumstances. Therefore, the question remains whether omitting the regulation of mergers and interlocking directorates was a wise decision.

The value of regulating mergers and interlocking directorates is a function of a nation's economy. Because Jamaica has a small economy, regulations necessary for a large economy may be unnecessary. Regulating mergers and interlocking directorates is a cardinal example of burdensome and unnecessary regulation in a small economy. Current academic discussions on the question of interlocking directorates in Jamaica [20] still rely on data that is almost two decades old [21] and focus on the concentration of wealth in an underdeveloped economy, rather than the use of legal structures to restrain and stifle competition. [22]

A. Comparing the Treatment of Monopolies

The Act is similar to United States antitrust laws in that the Act specifically prohibits trade restraints such as price fixing, [23] bid-rigging, [24] and conspiracies to limit production or reduce compe tition. [25] However, the Act and United States antitrust law differ significantly in their treatment of monopolies.

Section 2 of the Sherman Act restricts competitors from deliberately excluding competition or deliberately obtaining market power to control prices. Once competitor exclusion or price control is evidenced, the Sherman Act further requires proof of intent to destroy or limit competition to gain monopoly pricing power. The Sherman Act also prohibits an attempt or a conspiracy to monopolistically price any part of interstate or foreign commerce. Therefore, the Sherman Act seeks to prohibit monopolistic pricing rather than the mere possession of monopoly market-power.

Unlike the Sherman Act, Jamaica's Fair Competition Act does not prohibit attempting or conspiring to monopolistically price commercial goods. The Act is only concerned with the use or abuse of market power that restrains competition and actually results in a mono polistic pricing scheme. [26] The Act prohibits companies from taking the dominant position in the market, which it defines as "such a position of economic strength as will enable [the enterprise] to operate in the market without effective constraints from its competitors or potential competitors." [27] Although the Act does not prohibit attempting or conspiring to set monopolistic prices, the Act does prohibit actual monopolistic prices. Therefore, it is likely that many monopolistic pricing abuses under the Sherman Act are also abuses of a dominant position under Jamaican law. [28]

B. Comparing Enforcement Mechanisms

United States antitrust laws are enforced by individuals, state governments and the federal government. The Federal Trade Commission and the Department of Justice enforce the federal antitrust laws. Following this example, Jamaica's Fair Competition Act can be enforced by individuals as well as the state through Jamaica's Fair Trading Commission (Commission). The Commission is the admin istrative agency responsible for regulating enterprises that violate the Act by abusing a dominant position in the market. [29] Upon finding a violation of the Act, the Commission may take necessary and reasonable steps to overcome the effects of the market abuse. [30] If the business enterprise fails to respond to the Commission's directions, the Commission may apply to the court for a pecuniary penalty to enforce the directions. [31] The Commission has significant investigative power, including the power to subpoena information and dis cover documents.

In the United States, the Department of Justice can bring criminal proceedings. In Jamaica, criminal law is not used to enforce the Act but is used to protect the Commission's enforcement authority by making it a criminal offense to impede or obstruct the Commission's investigations. The Director of Public Prosecutions (Director) has the constitutional responsibility for determining whether to prosecute a case, but anyone may make a complaint before a Magistrate or Justice of the Peace.

The Jamaican government was adamant about including provisions in the Act to give individuals the right to bring a private cause of action similar to United States antitrust law. Such a policy allows an industrious applicant that has standing to initiate an action without suffering from the backlog of an overburdened or unmotivated administrative agency. The past performance of other administrative agencies in Jamaica suggests that such a right would contribute significantly to the Act's credibility. However, it is questionable whether the Act gives standing to private parties. [32]

The Jamaican government and the Commission maintain that the Act provides such standing. Admittedly, the Act contains provisions for private enforcement but the new private cause of action is vastly inferior to that enjoyed under United States antitrust law. For example, anyone who has suffered loss as a consequence of someone breaching the Act may recover the actual damages suffered. However, actual damages are not as significant a deterrent as the triple damages that may be imposed under the Sherman Act. Therefore, although the Act has created new private causes of action, the Act is not as aggressive as United States antitrust laws.

C. Comparing Damages Available for Antitrust Violations

United States antitrust laws recognize four separate types of legal sanctions: criminal fines and imprisonment, [33] injunctions, treble damages, and even forfeiture. [34] Similarly, the Act provides for enforcement via pecuniary, injunctive, and compensatory damages. [35] The Act does not permit criminal fines or imprisonment to enforce the consumer-protection and antitrust laws, except to ensure the effi cient operation of the Commission itself. [36]

A pecuniary penalty is new to Jamaican law. The pecuniary penalty is not a criminal fine and, thus, failure to pay the penalty does not result in a criminal record. Rather, the pecuniary penalty is a civil fine invoked by courts sitting in civil proceedings. The concept of a civil pecuniary penalty to enforce public law was unknown to Jamaican law before the Act. [37]

Precedent for the civil pecuniary penalty may be found in other Commonwealth Countries. The pecuniary penalty is a part of New Zealand's Commerce Act. [38] New Zealand's pecuniary penalty was based on Australia's Trade Practices Act that was passed in 1974. [39] Thus, even the most cursory review of the Act's enforcement provisions clearly lacks a connection to Jamaica's history. Section 46 of the Act provides that if the court is satisfied by a Commission application stating that any person has violated the Act or has failed to comply with any directions of the Commission, [40] the Court may exercise any of the Section 47 powers. These powers are strikingly similar to the provisions incorporated from New Zealand and Australian laws. [41]

Unlike New Zealand, Australia does not restrict its Trade Practices Commission to simply imposing a pecuniary penalty for violating antitrust laws. Jamaica has followed the New Zealand example of restricting the Commission's authority to imposing a mere pecuniary penalty for violating the Act. Some critics claim that by following New Zealand, rather than Australia, Jamaica has missed a unique opportunity to introduce more aggressive private enforcement into its antitrust laws.

Although the damages available under the Act are clearly influenced by Australian and New Zealand law, the actual implemen tation of the Act has made some illogical departures. In Jamaica, the pecuniary penalty can be applied only if provisions of the Act are actually contravened or if one fails to comply with a direction of the Commission. Jamaica's pecuniary penalty is not available as a remedy in cases involving attempts to contravene, or aiding, abetting, counseling or procuring to contravene the Act. Oddly enough, one may recover damages for loss caused by contravention of provisions of the Act or by attempting to contravene, or aiding, abetting, counseling, or procuring to contravene the Act. [42] There is no good reason why the Act should depart from the approach taken by Australia and New Zealand of imposing a pecuniary penalty, rather than damages, for making attempts to contravene, or the aiding, abetting, counseling or procuring the contravention of the Act. However, the broad formulation of the circumstances under which one may apply for damages under the Act may have the unintended effect of producing a further departure from United States antitrust law.

Under the Illinois Brick [43] doctrine developed in the United States, the courts generally restrict the recovery of damages to direct, versus indirect, purchasers. However, an Illinois Brick doctrine cannot develop in Jamaica because of the broad formulation of the circum stances under which one may claim damages for breach of the Act.

The standard of proof for recovering the pecuniary penalty and any other damages under the Act is the standard used in civil proceedings. [44] Apparently, there is no time limitation on the Commis sion to apply to Jamaica's Supreme Court for the right to impose a pecuniary penalty for violating the Act. However, civil causes of action for damages under the Act must commence within three years. [45]

D. Comparing the Role of the Courts

Although the Commission can assess a pecuniary penalty, only Jamaica's courts can enforce the penalty. The Commission's initial attempts to enforce a pecuniary penalty were conducted by a motion to Jamaica's Supreme Court, [46] so one can conclude that the Supreme Court is the proper tribunal to enforce pecuniary penalties. The Act does not refer to any procedural requirements for an application to the court. Therefore, under Jamaican law, any appropriate method may be used to approach the court. [47]

The Act does not give courts the specific power to declare that an individual or business enterprise has violated the Act. This is important, because under past legislation the power to declare a violation rested exclusively with administrative agencies. However, the courts are understood to have a common law supervisory power to ensure that all judicial, quasi-judicial and administrative agencies behave properly and act within the jurisdiction conferred. Thus, the power to declare the law is part of the inherent equitable powers of the court. Indeed, the Commission's first three applications to the Supreme Court have sought, inter alia , declarations that the respondents have broken the law. [48]

Like laws everywhere, Jamaica's laws must respond and adjust to changing circumstances. However, the Act is more specific than the antitrust laws that affect the United States legal system, and this rigidity restricts the Jamaican courts from defining and developing antitrust law. For example, the Sherman Act is deliberately vague. The Congress expected that the courts would draw the line between legal and illegal business conduct. The United States courts have therefore developed the principles of the test of reasonableness and per se illegality. [49] The test of reasonableness determines whether the challenged contracts or behavior unreasonably restrict competitive conditions. There is not much room to try to incorporate a test of reason under the Act. Jamaican businesses participate in many agreements and practices that are illegal per se because they blatantly lack redeeming value. Therefore, the Act would condemn these agreements and practices without further examination as to the precise harm caused or business rationale that might exist. [50] Examples of practices that are illegal per se include price fixing and bid rigging. [51]

E. Comparing Exemptions from Antitrust Regulation

United States antitrust laws recognize three major exemptions: exemptions under the Noerr-Pennington [52] doctrine, state action exemptions, [53] and statutory exemptions. The Noerr-Pennington doctrine, unique to United States law, recognizes a constitutional exception for lobbying government officials. [54] Jamaica's constitution does not provide such a right and therefore no exemption exists for lobbying.

Jamaica also does not recognize state action exemptions because Jamaica is not a federation of states but rather a "Monarchy and the Crown". [55] This formulation is unique and thus, destroys any immunity the state could enjoy except where that immunity is authorized by statute. By comparison, Australia's and New Zealand's provisions are not so extensive. The antitrust statutes in Australia [56] and New Zealand [57] bind the states provided the state is engaged in trade. Conversely, when the state is not engaged in trade the state is exempted under New Zealand and Australian law. [58] In Jamaica, the state is bound regardless of whether it is engaged in trade. This should affect many Jamaican government agencies, such as the statutory commodity boards, which not only participate in trade but also regulate the market in which they are engaged. Because the Act binds the Crown subject to contrary statutory provisions, the issue therefore becomes whether the statutes that created the government agencies are so incompatible with competition that they intend for the Crown, or the Crown's agents, to be exempt from the Act.

Jamaica does, however, recognize statutory exemptions. Similar to United States antitrust law, the Act creates statutory exemptions for combinations or activities of employees, for labor collective bargaining arrangements, for agreements relating to the use of copy right, patents and trade marks, and for international treaty obligations. However, unlike the United States, the insurance industry is not exempt.

Both the Commission and the government trade official have the authority to approve a given business activity as statutorily exempt from antitrust regulation. The Commission may authorize a noncompete agreement or permit a collusive business practice if it is satisfied that the agreement or practice is likely to promote the public welfare. [59] In addition to the Commission's exemption authority, the government trade official may also exempt any business or activity. The official's decision is subject to an affirmative resolution in Parliament, but the Act contains no similar review for the decisions of the Commission.

IV. C OMMENTARY AND C ONCLUSION

Antitrust law is new to Jamaica and has presented new administrative and policy challenges. Some issues are easily resolved and require only investigation, analysis, and enforcement. For example, proving whether a baker's two-pound loaf of bread sells for the same price in every shop on the island is not difficult. Likewise, proving whether a housing developer who has advertised that houses will be completed within a certain time at a certain price knew that this could not be done and was guilty of misleading advertising should not be difficult. Nevertheless, these are new problems for the Jamaican government.

Other issues are more difficult to resolve, regardless of the time or the legal and economic environment. The question of the coffee industry presents one such difficulty. Jamaican Blue Mountain coffee is considered a superior product, but its price likely reflects both its quality and its regulation by the Coffee Industry Board. Does the contribution of this industry to the national economy justify an "authorization" under the Act to enable the restrictive practices of the Coffee Industry Board to continue? What about Jamaica's national telecommunications monopoly? The abuse of dominance is clear when a value-added service provider is prevented from connecting to the national telecommunication grid, but is the abuse just as clear when the value-added provider is connected to the national telecommunication grid at a higher fee? Does the National Water Commission abuse its monopoly power by charging a higher price to its regular customers to compensate for what it calls "social water" provided to depressed areas at no charge? All these questions, and many other questions of equal national importance, are still unanswerable due to the uncertain meaning of Jamaica's antitrust laws.

Ultimately, there are important differences between United States and Jamaican antitrust laws. However, Americans doing business in Jamaica will now experience antitrust laws similar to those in the United States. Even though there are important differences between the competition laws of the United States and Jamaica, American lawyers and people doing business in Jamaica will now experience a competition regime similar to the competition regime of the United States. There may even be circumstances where the new rules may provide an additional advantage to the American visitor: his local colleagues are likely to be no more certain of the meaning of Jamaica's Fair Competition Act than he is.

_______________________________

[*] LL.B., LL.M., M.B.A. Attorney at Law, Jamaica. Lecturer in Law, University of the West Indies, Mona, Jamaica. Return to text.

[1] Other important changes in Jamaica's commercial law are taking place. These changes primarily introduce de novo regulation of banking, finance and securities. Return to text.

[2] No item of post-World War II commercial legislation, except perhaps Jamaica's Rent Restriction Act, will have the same economic impact. There are some who will argue, of course, that rent restriction legislation in general, and Jamaica's in particular, has had a nega tive influence on economic development. None can argue, however, whether for good or evil, that its impact has not been significant. Return to text.

[3] See infra part III.B. Return to text.

[4] This discussion will focus only on antitrust regulation with some passing reference to market regulation. The legal reforms in consumer protection, although radical, are not considered controversial. Furthermore, although the Fair Trading Commission's structure and function will be controversial, the Act's antitrust law will take center stage in the political debate. Return to text.

[5] When comparing the Act's antitrust provisions to United States law, this Article refers only to federal antitrust law. Return to text.

[6] G OVERNMENT OF J AMAICA , G REEN P APER ON THE P ROPOSALS FOR A "C OMPETITION A CT ," (April 9, 1991) (published in Parliament). Return to text.

[7] Id. Return to text.

[8] The Green Paper included "a basic outline of the legislation." This outline, however, was merely a body of proposals designed to promote discussion and comment. See generally D ERRICK M C K OY ET AL ., T HE P ROPOSED C OMPETITION A CT : A N A NALYSIS OF THE G REEN P APER & A PPENDIX (1991) (summarizing and appraising the need for legislation). Return to text.

[9] Although United States law and policy were the Act's foundation, the Act is not a mirror image of United States law. In fact, the Act is a hybrid of Canadian, English and New Zealand legislation. See generally id. Return to text.

[10] Sherman Antitrust Act, ch. 647, §§ 1-8, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-7 (1988)). Return to text.

[11] J AMAICA A CTS , Fair Competition Act (Act 9 of 1993) [hereinafter Fair Competition Act]. Return to text.

[12] Id . preamb. Return to text.

[13] 356 U.S. 1 (1958). Return to text.

[14] Id . at 4. Return to text.

[15] Fair Competition Act, supra note 11, § 35(a). Return to text.

[16] Id . §§ 35(b)-(d). Return to text.

[17] For example, Perez v. United States , 402 U.S. 336 (1971), illustrates the United States courts' broad interpretation of the Commerce Clause. In Perez the defendant was convicted of violating the "loan sharking" provisions of the Federal Consumer Credit Protection Act. It had been proven that the defendant had used extortion to collect illegal rates of interest but he challenged the constitutionality of he stature on the ground that Congress has no power to control intrastate loan sharking. The court held that extortionate credit transactions, though purely intrastate, may affect interstate commerce. Return to text.

[18] Following the New Zealand Commerce Act, the Fair Competition Act defines a market as follows:

Every reference in this Act to the term "market" is a reference to a market in Jamaica for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.

Fair Competition Act, supra note 11, § 2(3). Return to text.

[19] Clayton Antitrust Act, 18 U.S.C. §§ 12-27 (1988 & Supp. V 1993); see also United States v. Penn-Olin Chem. Co., 378 U.S. 158 (1964). Return to text.

[20] E.g ., Darren Skinner, Unlocking the Interlocks: Common Law Fiduciary Duties and the Phenomenon of Interlocking Corporate Directorates in the Commonwealth Caribbean , 3 J. TRANSNAT'L L. & POL'Y 53 (1994). Return to text.

[21] E.g ., Stanley Reid, An Introductory Approach to the Concentration of Power in the Jamaican Corporate Economy , in E SSAYS ON P OWER AND C HANGE 15 (1977). Return to text.

[22] True competition, however, is not an abstraction. As Jamaica's economy redefines its niche markets, those markets will impose and promote competition in Jamaica. It is possible that opening Jamaica's markets to international trade, rather than regulating mergers, may pro vide the impetus for assuring competition. Return to text.

[23] Fair Competition Act, supra note 11, § 34. Return to text.

[24] Id . § 36. Return to text.

[25] Id. § 35. Return to text.

[26] See id . § 20. Return to text.

[27] Id . § 19. Return to text.

[28] For examples of cases that would perhaps be actionable in Jamaica as abuses of dominant positions, see Aspen Skiing Co. v. Aspen Highland Skiing Corp., 472 U.S. 585 (1985), and Lorain Journal v. United States, 342 U.S. 143 (1951). In Lorain , the publisher of the Lorain Journal newspaper, in an effort to destroy a competing small radio station, refused to sell advertising to persons that patronized the radio station. The publisher's pattern of conduct was described as "bold, relentless and predatory" and a deliberate effort to discourage customers from doing business with its smaller rival. Return to text.

[29] Fair Competition Act, supra note 11, § 5(1)(d). Return to text.

[30] Id . § 21(1)(b). Return to text.

[31] For a discussion of the role of Jamaica's courts in interpreting antitrust laws, see infra part III.D. Return to text.

[32] The Director may initiate any criminal prosecution and estop any prosecution, civil or criminal, initiated by anyone else. It is difficult to conceive, however, that anyone not con nected to the Commission would seek to use the criminal legal process to enforce the powers of the Commission. Return to text.

[33] Crimes under the Sherman Act are now felonies and individuals can be fined up to $350,000 and corporations can be fined up to $10,000,000 for each offense. Individuals can also be imprisoned for up to three years. Return to text.

[34] Any property owned in violation of Section 1 of the Sherman Act, which is being transported from one state to another, is subject to seizure and forfeiture to the United States. It is understood that this remedy is rarely used. Return to text.

[35] Fair Competition Act, supra note 11, §§ 46-50. Return to text.

[36] The Act supports the Fair Trading Commission's activities with two degrees of punishment. The most severe punishment may involve, on conviction before the Supreme Court, imprisonment for up to five years, or a fine, or both. The less severe punishment may involve, on conviction before a Resident Magistrate, imprisonment for up to two years, or a fine, or both. The more severe penalty is reserved for those who impede, obstruct or mislead the Commission or its authorized officers. The less severe penalty is applied to those who fail to comply with a requirement or to appear before the Commission when summoned to do so. Id . Jamaican law does not permit the plea of nolo contendere to a criminal charge, a device often used to achieve criminal convictions in antitrust matters without acknowledging liability for subsequent civil actions. Therefore, a guilty plea in Jamaica may be used in some cases as proof of liability in subsequent civil actions arising out of the same set of circumstances. Conversely, an unsuccessful "not guilty" plea will not relieve a plaintiff's burden of proof in subsequent civil proceedings arising out of the same circumstances. The allocation of the burden of proof in civil proceedings that follow an unsuccessful antecedent criminal defense is the same for an unsuccessful antecedent civil defense. Return to text.

[37] The closest concept to a civil pecuniary penalty is in a criminal provision that allows the presiding magistrate to impose a fine, upon request from the Commissioner of Customs, for certain breaches of Jamaica's Customs Act. Return to text.

[38] The New Zealand Act provides:

If the Court is satisfied on the application of the Commission that a person . . . has contravened . . . this Act . . . [t]he Court may order the person to pay to the Crown such pecuniary penalty as the Court determines to be appropriate, not exceeding $500,000 in the case of a person not being a body corporate, or $5,000,000 in the case of a body corporate, in respect of each act or omission . . . . In determining an appropriate penalty . . . , the Court shall have regard to all relevant matters, including . . .

(a) The nature and extent of the act or omission;

(b) The nature and extent of any loss or damage suffered by any person as a result of the act or omission;

(c) The circumstances in which the act or omission took place;

(d) Whether or not the person has previously been found by the Court in proceedings under this Part of this Act to have engaged in any similar conduct.

Commerce Act 1986 of New Zealand § 80(1)- (2). Return to text.

[39] The Australian Act provides:

If the Court is satisfied that a person—

(a) has contravened a provision of Part IV; . . . [t]he Court may order the person to pay to the Commonwealth such pecuniary penalty (not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies) as the Court determines to be appropriate having regard to all relevant matters, including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this part to have engaged in a similar conduct.

Trade Practices Act 1974 of Australia § 76(1). Return to text.

[40] The most important of which would be the regulatory power the Commission may exercise under Section 21 when it finds that an enterprise has abused its dominance. See Fair Competition Act, supra note 11, § 21. Return to text.

[41] The Act provides that:

the Court may . . . order the person to pay to the Crown such pecuniary penalty not exceeding 1 million dollars in the case of an individual and not exceeding 5 million dollars in the case of a person not an individual . . . [or] grant an injunction restraining the offending person form engaging in [prohibited] conduct . . . . In exercising its powers under this section, the Court shall have regard to . . .

(a) The nature and extent of the default;

(b) The nature and extent of any loss suffered by any person as a result of the default;

(c) The circumstances of the default;

(d) any previous determinations against the offending person.

Fair Competition Act, supra note 11, § 47(1)-(2). Return to text.

[42] Id . § 48(1). Return to text.

[43] Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Return to text.

[44] Fair Competition Act, supra note 11, § 47 (3). Return to text.

[45] Id . § 48 (2). The words used in this subsection are not words of limitation but rather words of ennoblement: "An action . . . may be commenced at any time within three years." However, since the first subsection already gives the right of action, it would seem that the draftsman intended the second subsection to limit the right already conferred. Return to text.

[46] Fair Trading Comm'n v. Broadway Import/Export Co. Ltd., Suit M85 (Jamaica 1994); Fair Trading Comm'n v. C. O. Jacks and Assoc. Ltd., Suit M86 (Jamaica 1994); and Fair Trading Comm'n v. Mores Trans. Svcs. Ltd., Suit M91 (Jamaica 1994). Return to text.

[47] In re Meister, Lucius and Brunning Ltd., 31 L.T.R. 1, 59 Sol. J. 25 (Jamaica 1914), cited with approval by Pierre v. Mbanefo, 7 W.I.R. 433 (Jamaica 1964). Return to text.

[48] Fair Trading Comm'n v. Broadway Import/Export Co. Ltd., Suit M85 (Jamaica 1994); Fair Trading Comm'n v. C. O. Jacks and Assoc. Ltd., Suit M86 (Jamaica 1994); and Fair Trading Comm'n v. Mores Trans. Svcs. Ltd., Suit M91 (Jamaica 1994). Return to text.

[49] The rule of reason was announced in Standard Oil Co. v. United States, 221 U.S. 1 (1911). Contracts or conspiracies in restraint of trade were illegal only if they constituted undue or unreasonable restraints of trade and that only unreasonable attempts to monopolize were covered by the Sherman Act. Return to text.

[50] Fair Competition Act, supra note 11, §§ 17, 18, 22, 23, 27 and 28. Return to text.

[51] The concept of per se illegality simplifies proof. If an activity is illegal per se , authorities must demonstrate only the existence of the activity to establish proof of the violation. There is no further need to examine or establish the effects of the activity. Other agreements or practices that do not fit this predefined list of per se illegality in the Act are proscribed only if they have, or are likely to have, the effect of substantially decreasing competition in a market. These concepts articulated in the Act have been derived from principles first articulated by United States antitrust statutes and refined by the United States courts. In the United States, noncompete agreements or activities are illegal only if they impose an unreasonable restraint on competition, but in Jamaica noncompete agreements are illegal only if they have or are likely to have the effect of substantially decreasing competition in a market. It seems that the result is the same. Return to text.

[52] The Noerr-Pennington doctrine protects legitimate efforts to influence governmental action. The doctrine derives from the United States Supreme Court's interpretation of the First Amendment to the United States Constitution. See Eastern R.R. President's Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965). Return to text.

[53] State action exemptions are also known as the Parker v. Brown doctrine. See Parker v. Brown, 317 U.S. 341 (1943). State action exemptions are still undergoing development in the United States. However, the Sherman Act seems to exempt state governments from its antitrust provisions, according to decisions like Parker v. Brown . Return to text.

[54] See supra note 52. Return to text.

[55] Fair Competition Act, supra note 11, § 54. Return to text.

[56] Trade Practices Act (Australia) § 2A. Return to text.

[57] Commerce Act (New Zealand) § 5. Return to text.

[58] See Thompson Publications Pty. Ltd. v. Trade Practices Comm'n, 40 F.L.R. 257 (Australia 1976):

The plain inference to be drawn from the provisions of [section] 2A is that the prohibitions . . . do not bind the instrumentalities of agents of the Crown in the right of the Commonwealth except in so far as they carry on a business. Return to text.

[59] Fair Competition Act, supra note 11, § 29. Return to text.

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COURSE DESCRIPTIONS

REQUIRED COURSES

ELECTIVE COURSES

LITIGATION AND PRACTICE SKILLS

SEMINARS

Last revised: November 18, 2010
(This includes all changes through the issuance of the Spring 2011 Schedule of Classes.)
IMPORTANT NOTES:
Not all elective courses and seminars are offered each year. Some elective courses are only offered during the evening hours, beginning at 6:00 p.m. or later. The Law School reserves the right to add, delete, or change any course, or the credit for any course, or the courses required for graduation, at any time. Some elective courses and all seminars and clinical programs have limited enrollments and may not be available for every student who wants to take them. Course descriptions that have been added or revised since 2001 are indicated by a notation of the date the description was added or revised.

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[Elective Courses] [Litigation and Practice Skills] [Seminars] 

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REQUIRED COURSES
Doctrinal Courses

Law 258 Civil Procedure. A study of basic restrictions upon the procedural systems of both the federal and state courts, and various aspects of civil litigation in the federal system. The course focuses on the requirements of due process as a limitation upon the personal jurisdiction that courts may exercise over defendants and on the subject matter jurisdiction of the federal courts imposed by Article III and congressional legislation. The course also addresses pleadings, challenges and amendments to pleadings, pretrial discovery, adjudication without trial, and other procedural issues. Five credit hours.

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Law 275 Constitutional Law. This course provides an introduction to the fundamental law of the United States as set forth in the Constitution and developed primarily by the United States Supreme Court. It addresses Supreme Court review, separation of powers, federalism, and the protection of individual rights under the Fourteenth Amendment Due Process and Equal Protection Clauses. Specific topics include the Commerce Clause, race and sex discrimination, abortion and the right to privacy, and the concept of state action. These topics are explored in the context of the historical and theoretical foundations of American constitutionalism, including the role of the Supreme Court in American government and the controversy over different approaches to constitutional interpretation. Four credit hours.

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Law 251 Contracts. A study of issues of contract formation, interpretation, breach, defenses, and remedies. Contract doctrines such as "consideration" and "offer and acceptance" and modern deviations from the traditional model are presented, as are various defenses to the prima facie case of contractual obligation. These include the traditional defenses of duress, misrepresentation, mistake, impossibility, and frustration. The contract remedies of monetary damages, specific performance, rescission and reformation are also explored. Among the other issues that may be studied are the parol evidence rule, the statute of frauds, and the rights of third party beneficiaries. Five credit hours.

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Law 257 Criminal Law. A study of the general principles of criminal liability, including the justification of punishment, general concepts of act and fault, principles of justification and excuse, the significance of resulting harm, and accountability for acts of others. Certain specific crimes, such as murder and manslaughter, are also examined. Modern statutory developments provide a significant focus for study. Three credit hours.

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Law 206 Legislation: Process and Interpretation. This course provides an introduction to the creation, implementation, and interpretation of statutes. Topics addressed in the course include: how a statute works its way through the legislative system; the roles that different institutions play in a statute's passage, interpretation, and enforcement; alternatives to our legislative processes; the ways in which statutes embody public policy; theories and doctrines of statutory interpretation; and the role of courts in the interpretive process. (This course was formerly entitled "Legislative Process.") Three credit hours.
(revised 4/09)

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Law 415 Professional Responsibility. This course is designed to prepare students to recognize and deal with ethical issues in the practice of law. Topics investigated include: conflicts of interest, actual and potential, and the limits on representation required; confidentiality in the context of an adversarial system; lawyers' responsibilities as advocates in and out of the courtroom; ethical problems encountered by corporate and government lawyers; special problems facing prosecution and criminal defense lawyers; advertising and solicitation; and admission to the Bar. Actual and hypothetical problems are analyzed in light of the Code of Professional Responsibility and the Model Rules of Professional Conduct, subjecting both sets of rules to critical analysis. Two credit hours.

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Law 261 Property. An introduction to the law of property. Topics include: the meaning of ownership, including the right to exclude and the right to use reasonably; methods of acquiring ownership; the division of ownership into present and future interests; landlord and tenant law; multiple ownership; non-possessory interests and private arrangements for the control of use. Four credit hours.

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Law 253 Torts. An introduction to the basic principles of liability for harm caused to the person or property of others. The basic topics covered include the general elements of the plaintiffs prima facie case (legal injury, tortious conduct, actual causation and proximate causation), the various types of tortious conduct (intentional negligence, etc.), the relevant privileges and defenses that can be raised by the defendant (e.g. defense of self or others, contributory negligence, and consent or assumption of risk), and the underlying principles or policies justifying and limiting liability. Additional topics may be covered, such as various types of traditional strict liability (e.g. liability for nuisances and ultra hazardous activities), an introduction to modern products liability, vicarious liability, immunities, types of damages and other remedies, and allocation of liability among multiple responsible parties. Five credit hours.

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Legal Writing Courses
Students are required to take Legal Writing 1, Legal Writing 2, Legal Writing 3, Legal Writing 4, and a seminar.
(revised 4/09)

Law 259 Legal Writing 1. An introduction to legal analysis, research, and writing through the preparation of legal memoranda, client letters, and other assignments. This course emphasizes the basic skills and tools of analysis and research, and the fundamentals of good writing. Students research and write legal memoranda and other documents of increasing length and complexity; develop research skills, both individually and in group projects; and learn editing skills and the basics of legal ethics. Students rewrite several assignments after written comments from and in-person conferences with the professor. Three credit hours.

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Law 260 Legal Writing 2. This course provides additional instruction in legal research, analysis, and writing, with a focus on written and oral advocacy. Students write both a trial and an appellate brief, and are introduced to oral advocacy through preparing and presenting a mock appellate argument. Two credit hours.

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Law 431 Legal Writing 3. This course provides an introduction to non-litigation oriented transactional issues and documents, through shorter assignments than are the norm in Legal Writing 1 and 2, and on oral communication with colleagues and clients. One credit hour.

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Law 432 Legal Writing 4. This course focuses on specialized legal research in areas such as environmental law, intellectual property, labor/employment law, and international law, and on drafting legal instruments common to these areas. Students are introduced to research resources and techniques in the particular area of focus, as well as in legislative history, administrative materials, international legal materials, and empirical research. Students typically will prepare several legal instruments for the specialty area and may be assigned a major paper in the subject area. Three credit hours.

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ELECTIVE COURSES

Law 278 Accounting and Finance for Lawyers. A study of accounting and finance and their practical application in the practice of law. Topics include the accounting treatment for assets, liabilities, capital, income and expense accounts; the preparation and analysis of financial statements; and the fundamentals of finance. Some high profile accounting scandals such as Enron will also be explored. Students with more than three hours of undergraduate accounting may not take this course. Two credit hours.

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Law 372 Administrative Law. A study of the legal problems involved in the creation, functioning, and control of government agencies (other than courts or legislatures) that engage in rule making or adjudication. Particular attention is given to the constitutional constraints on agency action, including those imposed by due process, separation of powers, and the nondelegation doctrine. The investigative functions of agencies and the timing, method, and scope of judicial review of an agency's actions also are covered. Three credit hours.

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Law 427 ADR in the Workplace. This will be a practical class covering employment-related alternative dispute resolution both in the union setting, focusing on collective bargaining and arbitration, and in the non-union setting, focusing on mediation and arbitration. Two credit hours.

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Law 866 Advanced Legal Ethics (Family Law LL.M. Class). This course will provide an in-depth analysis of the ethical issues currently facing the legal profession. Although the course will primarily focus on ethical issues that face the family law attorney, the issues have a broader application to the entire profession. Many "hot topics" in legal ethics will be discussed, including but not limited to client confidentiality, conflicts of interest, dealing with dishonest clients, e-discovery, and the use of social networking in litigation and in marketing a legal practice. Students will be graded on the basis of a short paper and presentation regarding a topic of their choice and class discussion of the problems presented. The class is open both to students in the Family Law LL.M. program and to J.D. students. Two credit hours.
(added 11/10)

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Law 486 Advanced Legislative Advocacy. This course will provide an opportunity for students to develop and implement a complete Policy Action Plan. This advanced course will focus on a thorough understanding of researching, understanding, and drafting legislation, as well as administrative rules and regulations. Students will select a topic to work on for the semester, which may be a continuation of the topic they addressed in the basic Legislative Advocacy course. Students will be expected to prepare a comprehensive policy review of their topic, with an in-depth analysis of the existing laws and regulations pertaining to the topic. Students will also be expected to develop a sophisticated research base for their topic, which will include drafting expert testimony on behalf of a researcher. Students will also complete research including legislative history, relevant policy makers, and agency officials and administrators. Prerequisite: Legislative Advocacy. Two credit hours.
(added 4/07)

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Law 474 Advanced Property: Real Estate Finance and Transfers. This course focuses on the modern real estate transaction. The course consists of two basic parts. Part 1 will examine the process of land transfer. Topics covered include the real estate contract, risk of loss, title assurance and deed formalities. Part 2, which constitutes the bulk of the course, deals with the law of land finance. Topics covered include installment land sales contracts, sale and lease backs, mortgage formation, environmental and other due diligence requirements, foreclosure, and equity participation. New, advanced forms of land security will also be covered. Some attention will be given to the federal tax consequences of different transactions. Two credit hours.
(added 4/07)

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Law 446 Advanced Torts. The first-year Torts course is limited, mainly by credit-hour-restrictions, to covering concepts related to attempted recovery for physical injuries to the person caused by one's negligence, intentional acts, or abnormally dangerous activities. In Advanced Torts, students will analyze actions that seek to protect against intangible or economic injuries. Among the topics that may be considered are: Defamation, the Right of Privacy, the Right to Publicity, Fraud and Deceit, Interference with Contractual Relations, Interference with Prospective Advantage, Injurious Falsehood, Malicious Prosecution, Abuse of Process, and various Statutory Torts. In addition, there will be a review of the so-called "tort reforms" enacted by Congress and state legislatures in recent years. Two credit hours.

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Law 277 Agency Law. This course addresses basic principles of agency law, particularly the doctrines associated with authority, vicarious responsibility, and fiduciary duty. It also addresses how agency principles and doctrines are applied in such areas as legal ethics, corporation law, contract law, civil procedure, criminal law, torts, and constitutional law. Two credit hours.

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Law 363 Antitrust. A study of antitrust law concerning problems of monopolies, price fixing, horizontal and vertical restraints on trade and mergers. The major federal legislation in the field, including the Sherman Act and the Clayton Act, are considered in detail. Three credit hours.

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Law 223 Appellate Courts and Procedure. Appellate courts make important case law decisions and supervise courts below them in the judicial hierarchy. This course will examine the functions of appeals and appellate courts, and the process of appellate review: appellate jurisdiction, standing to appeal, timing of review, vehicles for obtaining review, the breadth and depth of review, and appellate lawmaking. The course also will consider the structure of our appellate courts, and how those courts and Congress have responded, and may in the future respond, to the threat to function posed by the increasing volume of appeals. The course will acquaint students with the contemporary role of appellate counsel and with the U.S. Supreme Court's certiorari policies and practices. Although federal courts will be the main focus, many of the matters discussed also will be pertinent to state appellate systems. Three credit hours.

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Law 313 Banking Law. A study of the law of commercial banking with special emphasis on banking as a "regulated industry." Among the topics included are the history and structure of the American banking system and of the federal regulatory agencies; the regulation of traditional banking activity, including lending limitations; discrimination based on sex or marital status; usury; reserve requirements; capital adequacy; interest limits; the formation of a new bank or branch; branch banking; management interlocks; criminal liability; attainment of competitive markets; banks' trust powers; and failing banks and the FDIC. The course will include a description of the banking industry and the regulation of banks in several foreign countries and major international financial centers. Included are several topics of “international banking” such as the methods by which banks of one country can operate in another country. Three credit hours.
(revised 11/07)

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Law 435 Bankruptcy. After surveying the rights of creditors under non-bankruptcy law, this course focuses on how the Bankruptcy Code deals with those rights and other relationships involving the debtor. Topics covered include initiation of bankruptcy proceedings, the stay and its consequences, definition of the bankruptcy estate, claims, priorities, exemptions, discharge, avoidance powers, executory contracts, liquidation, reorganization, and other issues. Three credit hours.

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Law 153 Business Legislation Practicum. Each student enrolled will chose a current project of the Institute of Illinois Business Law and work with the members of that project sub-committee. The Institute has been located at Chicago-Kent for the past four years, under the Directorship of Prof. Philip Hablutzel. Over the past 30 years, the Institute and its predecessor has written all the major business statutes in Illinois. Each year, the Institute has six to eight law reform projects in various states of drafting or submission to the Illinois General Assembly. One or more students will work with a project sub-committee and do legal research and other assistance.  The time committment is four hours per week. Supervision will be by Prof. Hablutzel and the project chair. One credit hour.
(added 11/10)

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Law 409 Business Organizations. This course examines how businesses are organized in the United States and the variety of legal regulations they face. It considers the different forms of business organizations, including sole proprietorships, general and limited partnerships, limited liability companies, and the various forms of incorporated business enterprises, with the goal of establishing which form of organization is best suited for a variety of business goals. The course emphasizes the rights and obligations of the various parties in the business relationshipBemployees, promoters, partners, and corporate officers, directors, investors, and stockholders, as well as their attorneys. Special focus also is devoted to the question of control of closely-held corporations. These general themes are examined in the context of specific corporate issues, including executive compensation; proxy contests; basic securities fraud and insider trading; and mergers, acquisitions, and tender offers. The course also includes an introduction to basic principles of corporate finance. Four credit hours.

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Law 292 Business Planning for Closely-Held Companies and Entrepreneurs. This class is useful for any lawyer who wishes to practice business law and plans to work in any of the following areas: corporate, real estate, mergers and acquisitions, private equity, venture capital, securities, finance, investment banking, or privae or public business enterprises. Students will learn about basic business concepts and fundamentals, structuring, negotiating and documenting the deal, letters of intent, purchase and sale agreements, buy-sell agreements, organizing and funding, choice of equity, business and real estate valuation, capital structures, fund formation, securities law considerations, and employment agreements. Two credit hours.
(added 11/08;revised 11/09)

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Law 369 Civil Procedure 2. This course will complete the overview of civil litigation in the federal system. It will focus on judicial supervision of pretrial conferences, the promotion of settlements, and incentives to settle; the trialBincluding the Seventh Amendment right to jury trial, judicial control of the verdict through judgments as a matter of law, new trial orders, remittitur and additur, different kinds of verdicts, and juror impeachment of the verdict; the preclusive effects of judgments; and pre- and post-judgment remedies. Three credit hours.

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Law 279 Civil RICO and High-Profile Lawyering. This course will explore the Racketeering Influenced and Corrupt Organizations Act (RICO), which was enacted to combat organized crime but today is used against legitimate businesses and individuals. Since the law offers private litigants triple damages and attorney fees, it has enticed a great many lawyers into federal court with cases that would otherwise be ordinary contract and fraud disputes. We will untangle the fundamentals of a RICO case, the enterprise, the racketeering activity, and the concepts of "proximate causation" and conspiracy. Since all RICO cases involve allegations of criminal misconduct, we will also examine the ethical obligations of a lawyer prosecuting a RICO case. Can the lawyer publicly accuse the defendants in a civil RICO action of being "racketeers" and describe their criminal misconduct in the news media or on the Internet? Can the defendant respond with a defamation lawsuit? We will cover the legal and ethical limitations on such publicity. Two credit hours.
(added 11/09; revised 11/10)

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Law 265 Commercial Law: Payment Systems. An examination of the legal regulation of various methods of payment, with primary emphasis on checks and wire transfers and some consideration of letters of credit, credit cards, debit cards, stored-value cards, and cash. The course also deals with promissory notes, primarily as a means to explore the concept of negotiability. Coverage includes Uniform Commercial Code articles 3, 4, 4A, and 5. Three credit hours.

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Law 202 Commercial Law: Secured Transactions. This course is concerned with the structuring and use of transactions in which personal propertyBautomobiles, computers, rights to payment, wheat, etc.Bis used to secure business and consumer debt. It examines the rights of the parties to a secured transaction (i.e., debtor and creditor) as between themselves and as against third parties. The emphasis is on security interests created under Article 9 of the Uniform Commercial Code. Three credit hours.

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Law 455 Commercial Law: Survey. This course provides a survey of the Uniform Commercial Code and is designed for those students who either do not want to take the individual commercial law courses (Payment Systems and Secured Transactions), or have not decided whether to take these courses. Commercial Law is clearly the most significant substantive subject appearing on the Illinois Bar Examination, appearing on all four parts of the exam (the Multistate Bar Examination, the Multistate Essay Examination, the Illinois Essay Examination, and the Multistate Performance Examination). In light of the above, it is advisable that students planning to take the Illinois Bar Examination should have some exposure to the Code. This course is not a prerequisite for any other commercial law course. If you take this course, you will be able to subsequently (or concurrently) take Payment Systems and/or Secured Transactions. If you have already taken both Payment Systems and Secured Transactions, you may not take this course. Four credit hours.

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Law 256 Commercial Real Estate Transactions. This course addresses foundational topics in commercial real estate transactions, including sales and purchase, leasing, financing, and distressed properties. The course also provides an introduction to skills in negotiation and drafting and incorporates a substantial simulation component, including one Saturday all-day deal simulation workshop (the date of the workshop will be announced in the first class meeting). Three credit hours.
(added 11/09)

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Law 430 Comparative Law. This course examines the problems and issues that arise when a lawyer deals with foreign clients, foreign lawyers, or foreign law. It focuses on the differences in substance, procedure, methods, and ways of thinking between the United States and other countries, revealing the many ways in which the United States legal system is unique and evaluating the implications of this uniqueness. The course examines foreign laws and legal institutions and identifies ways in which lawyers can learn about and better understand systems other than their own and develop strategies for dealing with the effects of differences between systems. Three credit hours.
(revised 4/05)

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Law 473 Comparative Tort Law. Comparative law is important for at least two reasons. First, law and legal disputes are increasingly becoming more global, so that knowledge of other legal systems with different procedural and doctrinal structures, especially those based on the European civil law tradition rather than the Anglo-American common law tradition, as well as law promulgated by international organizations such as the European Court of Human Rights, is becoming increasingly important to everyday legal practice. Second, studying how other legal systems deal with various substantive and procedural issues can provide useful insights for how those issues might be better dealt with in our legal system. The premise of this course is that the benefits of studying comparative law can be best obtained by focusing on a specific area of law, which however encompasses issues and doctrines that are fundamental to all of law. Tort law is such an area. Two credit hours.
(added 11/06)

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Law 272 Complex Business Litigation. This course explores advanced issues in complex business litigation in the federal courts. Using recent case studies, students will explore practical strategies for pretrial litigation, including preserving the attorney-client privilege, disclosing expert reports and taking and defending expert depositions, managing electronic discovery and preservation of electronically stored information, drafting motions to compel discovery, and moving for summary judgment in complex cases. This course is intended to bridge the gap between first-year civil procedure and practice as an associate in a business litigation practice following graduation. Students will be graded on both class participation and written assignments that will apply the classroom instruction to drafting motions and briefs. Two credit hours.
(added 11/10)

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Law 327 Complex Litigation. A study of complex litigation involving multiple parties and multiple claims. By way of background, we consider joinder of parties and of claims generally, and treat transfer and consolidation of civil actions. We then emphasize all major aspects of class action litigation. The facets covered include ethical considerations, history and philosophy, federal subject matter jurisdiction, due process considerations, requirements for bringing a class action, notice, settlement, administration of judicial relief, appealability, binding effect of the judgment, attorneys' fees, and trying complex cases. This advanced course serves to round out a student's background in civil procedure, and demonstrates clearly in what respects and why complex litigation has presented special problems requiring special treatment. Three credit hours.

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Law 478 Computer and Network Privacy and Security: Ethical, Legal, and Technical Considerations. More and more, both practice and the job market require lawyers who understand the interface between law and technology. This course provides a unique opportunity to understand that interface. No technical knowledge is required. Everything is explained in plain English. The course addresses the issue of privacy in an age of surveillance. How much privacy should we demand? Why does privacy matter? How is privacy to be defined? The course addresses security issues because in the Internet age there is no privacy without security and security failures may yet lead to the end of the Internet age. The course provides a unique opportunity to really understand the interface between law and technology. Three credit hours.
(added 11/07)

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Law 371 Conflict of Laws. A study of the legal problems that arise when the domiciles of the parties or other significant facts of a controversy are connected with states other than that where the litigation occurs. Among the topics included are: the choice of applicable law, jurisdiction of courts, the effect of out-of-state judgments, and the rules of decision applicable in multi-state transactions. International conflicts are becoming increasingly frequent and important, and thus the class will include discussion of the international aspects of each of the three main areas of inquiry (choice of law, jurisdiction, and enforcement of judgments). Similarly, the application of these rules in the context of cyberspace is given attention. Three credit hours.

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Law 152 Constitutional History. This course explores the history of the Constitution of the United States from the late eighteenth century through today. We will study the ways in which the Constitution has developed—its framing and ratification, the inclusion of the Bill of Rights and later amendments, subsequent judicial interpretations—in response to particular social and political circumstances. Through an examination of major episodes from American history, students will be exposed to central themes of constitutional development: the concept of a written constitution, judicial review, the balance of power between the central government and the states, the problem of slavery and racial equality, free speech, gender equality, and the role of law in shaping cultural norms. Although much of the course is dedicated to analyzing the ways in which the courts, particularly the United States Supreme Court, have interpreted and applied the Constitution, we will also give close attention to the efforts of individuals and groups outside the judiciary to shape the Constitution and define its role in American society. Three credit hours.
(added 11/10)

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Law 351 Construction Law. A study of contractual relations among participants in the construction process; legal disputes arising out of the bidding and construction process; and the customs of the construction industry as they relate to legal problems. There will be some discussion of the bidding process and bonding requirements. The contractual interrelationships among the owner, the architect, contractors, and subcontractors as defined by the "contract documents" and as implied by law will be fully discussed. Finally, an analysis of typical construction disputes arising from contract interpretation, change orders, time problems, and payment issues will be made. An understanding of how contract, and tort principles discussed in substantive courses are applied and interrelated within the construction industry will be derived from the course. Two credit hours.

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Law 378 Consumer Health Benefits. This course is designed to expose students to some of the legal and policy issues that confront individuals/consumers in our health care system. The course will explore the basics of our unique system of health care financing and delivery, focusing on how that system affects the consumer/employee/patient. Among the topics that are explored are employer-provided benefits; managed care; HMO liability; ERISA preemption; litigating benefit coverage denials; eligibility, funding, and benefits in the Medicaid and Medicare programs; COBRA benefits; and health care reform. There is no exam and students are evaluated on the basis of a paper and class participation. Two credit hours.

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Law 405 Copyright Law. This course is a detailed examination of the entire range of copyright law, including protection for literary, musical, artistic, and other works of authorship. The course is centered on a consideration of the 1976 federal copyright statute, as amended by several recent pieces of legislation, including the Digital Millennium Copyright Act (the DMCA). Topics covered include what kinds of work are protected by copyright, ownership of copyright, and the rights and remedies provided by copyright law. In addition to exploring basic questions about the purposes, nature, and scope of copyright raised by the federal legislation, this course gives special attention to current controversies concerning the extension of traditional copyright principles to the online environment, the legality of peer-to-peer networks, protection for computer programs, Internet service provider liability, the constitutionality of new and greater forms of copyright protection, the interaction of copyright and free speech principles, and the effect of international treaties upon U.S. copyright law. Three credit hours.

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Law 360 Corporate Finance. This course is intended to provide a basic understanding of how stocks and bonds are utilized in the capital formation process, how businesses raise capital, and how the capital formation process is regulated. In addition, the course covers some fundamental concepts of financial analysis and investment techniques. Two credit hours.

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Law 344 Criminal Procedure: The Adjudicative Process. This course and Criminal Procedure: The Investigative Process are a study of the legal rules governing the operation of the criminal justice system from investigation to trial. Among the topics included in this course are: the right to counsel, transcripts and other aids; discovery and the failure of the state to disclose; pretrial publicity and change of venue; the right to a speedy trial; plea bargaining and guilty pleas; the right to a jury trial and problems of jury selection; ineffective assistance of counsel; sentencing; entrapment; double jeopardy; hearings into probable cause; and pretrial release. Three credit hours.

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Law 270 Criminal Procedure: The Investigative Process. A study of the legal rules, primarily constitutional, governing the operation of the criminal justice system from investigation to trial. Among the topics included in this course are: the meaning of due process; arrest, search, and seizure; wiretapping and electronic eavesdropping; police interrogation and confessions; eyewitness identification procedures; the scope and administration of the exclusionary rules; and grand jury investigations. Three credit hours.

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Law 437 Disability Law. This course examines statutes and cases concerning people with mental and physical disabilities. Most of the relevant law has developed in the area of schooling, insurance, employment, access to public facilities, and estate planning and guardianships. The course also explores the processes of administrative and judicial review as they have adapted to resolve these cases. Preparation of disability cases, the use of expert witnesses, and the role of attorneys in disability negotiations also are covered. Two credit hours.

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Law 524 Domestic Violence Courthouse Practicum. This course will offer a clinic-style experience working with clients who have been victims of domestic violence. The class will meet intermittently throughout the semester on Fridays, from 12:00-2:00 p.m.  However, the first three weeks of class will feature extended class and training on Friday afternoons; thus, for the first three weeks of the semester, students must be available from noon until 5:00 Fridays. After initial training and instruction about the dynamics of domestic violence, the Illinois law governing protection orders, and the operation of the domestic violence courthouse, students will work with clients at the courthouse (555 W. Harrison, two blocks from the law school) for six hours per week. Students may choose when they will perform their hours week by week. Work with the clients at the courthouse will include helping clients fill out petitions for emergency protection orders, advising clients on their cases, and perhaps even speaking for clients in court. In addition, we will periodically meet on Friday afternoons to discuss the issues and challenges students confront. Two credit hours.
(added 4/10)

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Law 215 E-Commerce. This course covers Internet contracting both domestically and internationally; payment systems and related privacy concerns; Internet business torts and anti-trust in e-commerce. Legal issues are examined against the background of the nature of e-commerce. Three credit hours.
(revised 12/02)

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Law 214 Election Law and Democracy. This is an advanced course in constitutional law that examines (1) the source and content of voting rights; (2) redistricting, reapportionment and gerrymandering; (3) recent legislative efforts to counter voting fraud; (4) direct versus representative democracy; (5) the role of political parties and the extent to which the existing legal regime entrenches the existing two-party system; and (6) alternative democratic voting structures (including at-large versus districting; cumulative voting; and others). Throughout the term we will carefully consider the proper judicial role in addressing these issues, as well as the roles appropriately played by other institutions (i.e., Congress, the States, and independent commissions). Three credit hours.
(added 3/09)

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Law 495 Electronic Discovery. Students will learn what electronic discovery is, and how the federal rules of civil procedure, the federal rules of evidence, and case law affect this aspect of litigation. This course will also discuss what an attorney and his team need to consider when handling Electronically Stored Information (ESI) prior to and during the litigation process, how to manage the cost of production and processing, and how those considerations should affect an attorney’s thought process when working with this type of information. Students will learn how preservation obligations and spoliation claims can come into play. Two credit hours.
(added 4/08; revised 11/10)

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Law 248 Emerging Technologies. Law and the legal system anticipate and also respond to changes in technology in ways that may enhance or inhibit the development of new technologies and new applications of old technologies. This course examines these changes from a historical perspective using the telecommunications technologies and regulations as a case study. It then moves into current technological developments in genetic engineering, surrogate parenting, interactive cable TV, DNA testing, nanotechnology, facial recognition technologies, and the like. Legal issues involving intellectual property, contractual relationships, constitutional rights of individuals, rules of evidence, negligence, and products liability will be discussed in the contexts of a variety of emerging technologies. Questions revolve around the ways in which the legal system responds to changes with analogies to the "known and understood," with fear of the unknown, with conflict between legal and moral issues, with new law, and with the attorney's role in formulating change. Three credit hours.

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Law 353 Employee Benefits Law. A detailed study of the law governing retirement plans and related fringe benefits. Attention will be focused primarily on employer-sponsored pension plans that qualify for favorable tax treatment under the Internal Revenue Code. Topics include participation and vesting requirements, taxation of benefit payments, creditor's rights, the responsibility of plan administrators and trustees, and discrimination in favor of highly compensated employees. Three credit hours.

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Law 365 Employment Discrimination. An in-depth examination of the federal law concerning discrimination in employment on the bases of race, sex, religion, national origin, age, and disability. Topics covered include: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. The Illinois Human Rights Act also falls within the purview of this course, as does the common law development regarding wrongful discharge. Three credit hours.

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Law 391 Employment Relationships. This course will focus on the legal relationship between employer and individual employee. It will cover the common law aspects of that relationship, particularly contracts and torts. It will then examine statutory modifications of the common law. Statutes that may be examined include ERISA, the Civil Rights Acts, whistle-blower protection legislation, unemployment and workers compensation acts, Fair Labor Standards Act and OSHA. The course is recommended for students contemplating a labor law, corporate or general practice. Three credit hours.

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Law 232 Energy Law. This course offers a basic overview of the legal framework within which the production, distribution and sale of energy takes place. It is offered as part of the Program in Environmental and Energy Law but is open to all students. After a brief introduction to scientific concepts of energy and the history of energy technology, the course will survey the major sources of energy. The traditional sources have been oil, natural gas and coal converted to consumer products such as electricity and gasoline. Newer sources include nuclear and solar energy. Each source and delivery system has its own network of property rules and contract relationships. National energy policy will be reviewed and the impact of interregional competition on the regulation of energy will be studied, as will constitutional and economic concepts affecting the pricing of energy. Particular emphasis will be placed on energy issues in environmental law. Three credit hours.

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Law 373 Entertainment Law. A general survey of the legal principles and business customs and usages of the entertainment industry. Topics include: contract, labor, copyright, trademarks and unfair competition, privacy and publicity rights, and constitutional law cases and material involving the motion picture, live theater, television, music, and print publishing branches, and the production, distribution and retail sectors of each branch. Students interested in intellectual property and those who may represent individuals or entities in the entertainment industry should consider taking this course. The Copyright Law course is recommended preparation. Two credit hours.

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Law 489 Entrepreneurial Law Practicum. The Entrepreneurial Law Clinic will help students develop their lawyering skills by giving them the opportunity to work with individuals and small companies to address issues commonly arising out of the entrepreneurial environment, including but not limited to: LLC formation and conveyance of membership; contracts; protection of trade secrets; and trademark protection. Students are required to perform five hours a week of fieldwork in addition to a weekly one-hour class meeting. Activities will include interviewing entrepreneurs, preparing a preliminary issues assessment memorandum, presenting such memoranda to a practicing attorney and the class; researching legal issues raised and preparing a proposed course of action; and executing such action as appropriate. Students will receive feedback throughout the course from entrepreneurs, other students, and practicing attorneys. Students must have completed 30 credit hours. One credit hour.
(added 4/08)

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Law 426 Environmental Law and Policy 1. This course examines the scientific, economic, and ethical foundations of environmental law and policy and introduces the student to many of the major biodiversity conservation and pollution control regulatory programs. The role of courts in policing environmental regulation and decision-making is also covered. The course will take an interdisciplinary approach, looking at history, economic theory and analysis, and other disciplines. The course covers the common law origins of environmental protection, the National Environmental Policy Act, the Endangered Species Act, Clean Water Act, the Resource Conservation and Recovery Act, and Superfund. The course examines the substance of the Acts and uses them as vehicles for exploring complex statutory schemes, administrative policy-making, market environmental controls, the interplay of federal and state environmental programs, benefit-cost analysis, risk analysis, and environmental litigation. This is the first semester of a two-semester course sequence. While it is required for students concentrating in Environmental and Energy Law, it is open to all students. The course can be taken without the second semester course. Three credit hours.

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Law 441 Environmental Law and Policy 2. This is the second semester of a two-semester course sequence. While it is required for students in the Program in Environmental and Energy Law, it is open to all students. Environmental Law and Policy 1 is not a prerequisite. The course emphasizes the Clean Air Act as a vehicle for exploring complex statutory schemes, administrative policy-making, market environmental controls, the interplay of federal and state environmental programs, benefit-cost analysis, risk analysis, and environmental litigation. The course will also examine global warming and the broader concept of climate change. Two credit hours.

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Law 414 Estate Planning. An analysis of the various methods of achieving proper lifetime and testamentary planning, including the preparation of documents in connection with estate plans such as wills and trusts. Two credit hours.

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Law 311 Estates and Trusts. A study of the law relating to the gratuitous transfer of property at death and in trust. The course will examine the formalities required for the execution and revocation of a will, will contests, the problems incident to intestate succession, will substitutes, the creation and enforcement of private express trusts, the creation and enforcement of charitable trusts, and the use of class gifts and powers of appointment to introduce flexibility into estate plans. The course will also explore certain issues of elder law, such as living wills and health care powers of attorney. Four credit hours.

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Law 476 European Copyright Law. This course, which will be offered in intensive format, covers European approaches to digital rights management, the exploitation of works in computer networks (P2P, databases, software, etc.), the scope of fair use, liability for infringements in the digital environment, and the enforcement of rights. It considers not just the present state of regulation but looks at future challenges as well. Available as a course or seminar. The class will meet from Monday, August 20 through Saturday, August 25, 2007. Students taking the class as a regular course will take an exam at a date to be determined later. Two credit hours.
(added 4/07)

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Law 291 European Union. This course is designed as a general introduction to the legal system of the European Union (EU). It covers both its constitutional and institutional structure and focuses on specific key areas of substantive law. The course starts by introducing the EU's legal order, and then moves briefly into the EU's legislative process, where it concentrates on the political and legislative functions of the various institutions and the division of competences between the EU and its Member States. The course pays particular attention to the role of the judiciary in shaping the EU's legal order. The European Court of Justice developed the fundamental notions of direct effect and supremacy of European law. Those notions, through which rights are created for European citizens, are examined, and the course subsequently turns to how those rights can be enforced. The area of European Trade Law is then chosen as a 'test case' to analyse the legal, political and social developments of the European system. In particular, the provisions on free movements, competition, and state aids are thoroughly analysed with reference to the case law of the European Court of Justice and to relevant secondary legislation. This part of the course, by focusing also on specific issues such as the tension between market forces and values (public health, European culture, and social prerogatives), is not confined to legal themes only but indirectly examines the role of the EU and the values and polices upon which the European constitutional architecture is founded. Therefore, although the course is not a comparative one, a discussion on the US and EU institutional and judicial system is warmly welcome in each lecture. Three credit hours.

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Law 273 Evidence. A study of the rules of evidence and the reasons underlying these rules, with particular emphasis on the Federal Rules of Evidence. Among the topics included are: competency and examination of witnesses, including impeachment; relevancy; the hearsay rule and its exceptions; privileges; writings; opinion, expertise, and experts; scientific and demonstrative evidence; and other issues. Three credit hours.

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Law 207 Evidence and the Art of Advocacy. Students taking this course (a special section of the basic Evidence course) will also take a designated section of Trial Advocacy 1 in the same semester. Students will receive a total of six credit hours and will receive one grade for the entire six credits. Pass/fail is not available. The course is designed for students who have a serious interest in litigation and wish to be trial lawyers. The goal is that the students receive a clear mastery of the rules of Evidence at the same time learning to master the practical application of those rules in the courtroom. You will be applying the rules of evidence as they are discussed each week in class in your Trial Advocacy sections that same week. The Evidence component will be taught by Justice Erickson, and the Trial Advocacy 1 sections will be taught by three experienced trial lawyers. The course will be limited to twenty-four students for the Evidence portion; students will be assigned, in groups of eight, to one of the Trial Advocacy sections. There will be an Evidence final, a midterm bench trial, and a final jury trial. We believe this integrated hands-on approach will provide each student with a superior knowledge of the rules of evidence as well as the application of those rules. Three credit hours.
(added 4/10)

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Law 442 Family and Employment-Based Immigration Practice. This course is designed to familiarize law students with the practical, hands-on practice of family and employment-based immigration to the United States. In an increasingly international world, the ability to obtain and maintain lawful immigration status in the U.S., permanent and temporary, is very important. This course focuses on the ways foreign-born persons can obtain permanent immigration status in the U.S. through their family and/or employment, both from abroad and from within the U.S. itself. However, it does so from a practice standpoint - how to analyze a client's situation, how to determine the best route to permanent resident status for a particular client, what resources are available, and how to navigate the maze of the Immigration Service and determine which form needs to be used, and where to file it. We will also examine the temporary statuses available to persons seeking to enter the U.S. to work or study, also from a practice standpoint. There are no prerequisites, but we strongly recommend that you have previously taken an Immigration Law class or have practical experience in immigration law. If this is your first exposure to immigration law, we welcome you to the class but please be aware that the assignments may be more time-consuming than you would normally find in a two credit hour course. Two credit hours.
(revised 11/08)

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Law 340 Family Law. A study of the legal problems involved in the formation, continuation, and dissolution of the relationship of husband and wife, and the legal problems arising from the relationship of parent to child. Among the topics that may be discussed are are engagements; marriage requirements; marital rights and responsibilities; divorce; property distribution; child support; maintenance; parental rights; paternity; legitimacy; custody; adoption; and modern methods of conception. Three credit hours.

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Law 290 Family Wealth Management. The process of accumulating, managing and transmitting wealth raises important issues for individuals and families. This course will expose students to personal finance and wealth management, which will help them make informed decisions for themselves and those whom they advise. This is a practical course that covers the following subjects: wealth, financial assets and investing; home ownership and mortgage financing; life and disability insurance; property and succession; income taxation of the family; wealth transfer taxation; credit, debt and asset protection; planning for the costs of higher education, retirement security, and end of life issues. Many of these topics are the subject matter of specialized courses in the curriculum, including: Bankruptcy, Disability Law, Elder Law, Employee Benefits Law, Estates and Trusts, Estate Planning, Family Law, Gift and Estate Tax, Insurance, Personal Income Tax, and Secured Transactions. Family Wealth Management is a survey course that is not intended to be a substitute for any of these courses. Two credit hours.
(added 11/05; revised 11/06)

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Law 480 Famous Trials in History. This course will investigate some of the most famous trials in history. Included with be the Scopes trial on the teaching of evolution, the Sacco and Vanzetti murder trial, the Leopold and Loeb murder trial (including Clarence Darrow's argument against the death penalty), the O.J. Simpson murder trial, the Rosenberg trial, and other controversial trials. The course will be taught in a seminar format (although it may not be taken for senior seminar credit), with no final exam or paper. Professor Brill will begin the course with a multi-week investigation of the Sacco/Vanzetti case, its after-effects, and recent revelations about the case. Thereafter, students will be assigned, in teams of two, to prepare and present multi-media presentations of highlights from other significant trials, and lessons learned from that trial that may have relevance for current controversial cases. Grades will be based on the quality of the presentations. Two credit hours.
(added 11/07)

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Law 370 Federal Courts. A study of the powers of, and restraints upon, the federal judiciary, derived largely but not exclusively from Article III. Specific issues addressed include: the concept of judicial supremacyB the role of courts in a representative democracy; Article I tribunals; permissible congressional control of the original and appellate jurisdiction and remedial arsenal of the federal judiciary; abstention; sovereign immunity; and federal review of state court decisions. Three credit hours.

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Law 282 The First Amendment. A study of the constitutional protection of speech and religion under the First Amendment of the U.S. Constitution. The course will explore the history and theory of freedom of speech and religion; the constitutionality of regulating seditious speech, pornography, hate speech, and commercial speech; the permissibility of state support for religion; and other topics. Three credit hours.

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Law 393 Food and Drug Law. The U.S. Food and Drug Administration regulates products comprising over 25% of the consumer spending in the United States, yet its practices and mechanisms are not commonly understood. This one agency regulates most of the nation's foods, and all of its dietary supplements, pharmaceuticals, biological products, medical devices, cosmetics, and other products. It does so with a variety of legal tools and varying degrees of control over different product types, and yet its actions are guided by just two key goals -- to protect the public health and to help new products get to market -- and a small number of deceptively simple concepts. This course will examine the primary powers of this important agency, how the agency has changed over time in response to crises, business trends, and evolving public policy considerations, and will address some of the key concepts common to all federal regulatory agencies. Two credit hours.
(added 4/06)

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Law 403 Forensic Sciences. This course is designed to familiarize students with contemporary scientific evidence and expert witnesses. Acknowledged experts will present their specialties with an eye towards what the lawyer should know about the scientific area and how to select and utilize an expert witness. Emphasis will be on topics suitable to both civil and criminal cases. Topics include: pathology, toxicology, toolmark and firearms identification, questioned documents, fingerprints, forensic photography, and the polygraph. Two credit hours.

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Law 201 Gender and the Law. This class asks: how does gender (that is, concepts regarding what it means to be a man or woman) construct law, and how does law construct gender? Over the past thirty years a rich and exciting body of scholarship regarding gender and the law has developed. It poses a significant challenge to traditional ways of thinking about law, questioning some of the basic premises of what constitutes justice and equality in a democracy. This course examines the main tenets, methodologies, and controversies in this body of literature including the meaning of equality, the intersection of race and law, the public/private divide, concepts of objectivity and neutrality, and how law reproduces hierarchies while also having the ability to participate in significant social change. We will also analyze debates regarding sex work, domestic violence, reproductive rights, the nature of the workplace, and concepts of the family. The goal of the course is to think broadly and critically regarding the interaction of law, society, and gender while exploring the potential and limitations of our legal system. Three credit hours.
(added 11/06)

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Law 298 Genetics and the Law. As scientists unravel the health and behavioral implications of the 30,000 genes in the human body, legal issues abound. Genetic tests are being offered to let people know if they are at risk of having a child with a genetic defect or if they will later in life suffer from cancer or other diseases. Genetic predispositions are also being investigated for certain behaviors, such as intelligence or anti-social behavior. This course, which requires a paper rather than an exam, will cover the tort law, family law, health law, constitutional law, criminal law, employment law, and insurance law implications of developments in genetics. Three credit hours.
(re-added 11/08)

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Law 368 Gift and Estate Tax. This course deals with the federal taxation of gratuitous property transfers during life and at death and with the techniques for structuring transactions so as to minimize such taxation. The emphasis will be on gift and estate taxes, but we will also study the income taxation of trusts and estates and the generation-skipping transfer tax. These tax rules will be examined in the context of the kinds of transactions that give rise to their applicability: transactions that typically include outright gifts, so-called "living" trusts, irrevocable trusts, joint tenancies, powers of appointment, life insurance, and employee benefits. Three credit hours.

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Law 362 Health Care Law. This course is intended to introduce practical legal issues confronting healthcare organizations, including nonprofit and tax-exempt hospitals, health systems, physician groups, and other regulated providers of health care services. The class will be augmented by guest speakers from the field, and there will be assigned readings including selected cases and other materials. The course will cover the legal framework within which healthcare organizations are formed and operated, issues relating to access to healthcare and tax exemption controversy, regulatory issues governing the delivery of healthcare services, state and federal regulation of healthcare and enforcement trends, evolving corporate governance, compliance and ethics standards applicable to healthcare, legal issues in the operation of healthcare organizations, and healthcare reform and other current issues. Two credit hours.
(revised 11/09)

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Law 217 Health Care Law: A Strategic Overview. This course surveys the intersection of the American legal system with the finance, delivery, organization, and regulation of health care.  Topics to be covered include health care cost and access issues, health care policy and financing, and health care regulatory issues. Each of these broad subjects brings to the field of health law a number of fascinating and at times controversial legal and ethical problems which we will selectively explore. Two credit hours.
(added 4/09)

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Law 413 Illinois Civil Procedure. This course focuses on the Illinois Code of Civil Procedure and the Illinois Supreme Court Rules. Topics covered include: personal and subject matter jurisdiction, venue, and pleadings and motion practice, with an emphasis on how Illinois procedural rules differ from the Federal Rules of Civil Procedure. Two credit hours.

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Law 304 Immigration Law and Policy. This timely course explores the historical backdrop to modern immigration law and policy, its unique status in American law, and post-9/11 issues. Topics include immigrant status (family and employment), non-immigrant visas, citizenship, bases for exclusion and removal, and current refugee/asylum policy and procedures. Students may also visit the immigration court in Chicago. Two or three credit hours.
(revised 11/03)

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Law 561 Independent Research. Research under the supervision of a member of the faculty. One credit hour per semester.

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Law 501 Independent Research in Lieu of Seminar. Research under the supervision of a member of the faculty leading to the completion of a substantial paper fulfilling the seminar requirement. One credit hour per semester.

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Law 281 Intellectual Property and Technology Licensing. This course emphasizes the management of intellectual property. The intent is to provide the future corporate practitioner with important information about managing, marketing, selling, buying, and licensing corporate intellectual property assets (including patents, trademarks, copyrights, data, trade secrets, software, know-how, and other types of valuable information), and limiting corporate liability with respect to those assets. The course places particular emphasis on software and other emerging technologies, but will also cover traditional intellectual property issues. (This course was formerly entitled "Intellectual Property for Corporate Lawyers.") Two credit hours.
(revised 11/03)

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Law 283 Intellectual Property in the High Tech Era. This is a survey class in intellectual property law in the context of the current high tech era. It covers all four intellectual property regimes –- copyright, trademark, patent, and trade secret. Questions related to the use of intellectual property with the current technologies will be explored, including, for example, issues of the availability of generic drugs to developing countries and the relationship to the patented pharmaceuticals, the use of peer-to-peer file transfers across the internet, re-broadcast of copyrighted works through internet streaming as well as new digital satellite technologies, and the relationships among the regimes to protect a variety of products. This course will meet August 9-August 22, 2008, starting at 5:30 p.m. (all day on both Saturdays; no class on Sundays). The course is a survey of intellectual property law for students who are not pursuing the Intellectual Property certificate; we do not expect or advise I.P. certificate students to take the course. However, certificate students are not prohibited from taking the course. Students who take the course and later decide to pursue the I.P. certificate may take any I.P. course in the future. This course will not, however, count towards the credits needed to earn the certificate. Three credit hours.
(added 4/04; revised 4/08)

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Law 332 International and Comparative Labor and Employment Law. We live in a global economy that has compelled labor advocates to increasingly seek international sources for labor rights. Business leaders, on the other hand, are also requesting legal advice regarding the regulation of labor in foreign countries as they attempt to expand their businesses around the globe. International and comparative labor law is therefore more than an academic curiosity-–it is becoming an important aspect of business and labor law practice and advocacy today. With the forces of globalization as a backdrop, this course comprehensively develops labor and employment law in the context of international and comparative national laws important to the global economy. Sources of international labor law surveyed by the course will include the International Labor Organization (ILO), rulings and standards that emerge from the labor side accord to the North American Free Trade Agreement (NAFTA), labor clauses of free trade agreements and global corporate codes of conduct. The countries surveyed will include the U.K., Germany, France, China, Japan and India. Three credit hours.
(added 11/08)

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Law 387 International Business Transactions. An examination of the legal environment of business, focusing on the legal considerations specifically related to transactions having transnational elements. Among the topics discussed are: national laws relating to aliens and foreign transactions, the extraterritorial reach of American laws, international contracts, international technology transfers, international and commercial arbitration, and international investment. The respective roles of foreign law, foreign lawyers, and foreign clients in international business processes are also considered. Three credit hours.

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Law 374 International Capital Markets. This course examines the international aspects of the U.S. regulation of banking and securities; the international systems of regulating banking and capital markets including payments, settlements and capital adequacy; and the capital markets of the European Union (particularly U.K., Germany and France), and of Canada, and Japan. The course covers special instruments and techniques including Eurodollar deposits, Eurobonds, Global Bonds, international asset securitization, futures, options, swaps, offshore trusts, and project finance. Included are materials on second-tier markets such as Singapore, Hong Kong, Netherlands, Italy, Spain, several of the emerging markets such as Mexico, Argentina, etc. and the special problems of the "offshore" centers such as Lichtenstein, Cayman Islands, Antigua, Jersey, and the like. Three credit hours.

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Law 222 International Commercial Arbitration. This course is an introduction to a rapidly-expanding field in international commercial law. An increasing percentage of all international business contracts contain a clause for binding arbitration in cases of dispute. The reason is simple: In June 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was signed and has now been adopted by over 100 countries, including all the major commercial countries. This Convention ensures that an arbitral award, rendered anywhere in the world, will be enforced in the courts of the signatory countries. Judgments of courts do not receive this treatment: court awards are very difficult to enforce in other countries. Students will gain a working knowledge of the various international treaties which provide the structure of international commercial arbitration. The course will explore the ways in which arbitrations can be structured: either ad hoc or under the umbrella of an international organization. The course will examine several umbrella organizations and their "Rules," including The American Arbitration Association, the International Chamber of Commerce (ICC – Paris), The London Court of International Arbitration, UNCITRAL (United Nations Commission on International Trade Law), the International Centre for Settlement of Investment Disputes, and UNCITRAL's Convention for the International Sale of Goods. Topics to be covered include: under each regime and each set of rules, how does an arbitration panel obtain jurisdiction, how are the arbitrators chosen, what is the process, the rules and the costs, where does the arbitration take place, which language is used, how is evidence obtained and admitted, etc. No prerequisites. Three hours credit.
(added 4/04)

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Law 235 International Commercial Litigation. This course will examine international commercial litigation from the investigation of transnational disputes through the enforcement of judgments in the United States and abroad. Topics studied will include, among others, case analysis, jurisdiction over non-U.S. defendants, service of process on foreign defendants, obtaining evidence abroad, extraterritoriality, trial of transnational cases, and enforcement of judgments. International arbitration will also be examined. The course will be taught from both an academic and practical perspective, using actual court documents where appropriate. Three credit hours.

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Law 312 International Human Rights. The course involves both a definition of human rights as well as enforcement procedures for the implementation of human rights. The historical and philosophical bases of human rights are examined starting with the works of various thinkers from the diverse schools, particularly natural law, positivism, Marxism and the sociological school. The Universal Declaration of Human Rights and the later International Covenants are looked at in terms of the influences of the various schools. The course addresses the question of whether there is agreement as to fundamental human rights. Recent developments and tensions in the field of human rights, particularly since the increased membership of countries from the "third world" and socialist bloc countries, are investigated. This is highlighted by focusing on the later two covenants of the United Nations particularly the Covenant on Social, Economic and Cultural Rights, which enlarges the scope of human rights to include welfare, cultural, and economic rights. Finally, the course focuses on the contribution of international and non-governmental organizations in the protection and implementation of human rights. Two credit hours.

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Law 209 International Humanitarian Law of Armed Conflict. International Humanitarian Law (IHL), also known as the Law of Armed Conflict (LOAC) or simply the Laws of War (LOW), is a set of rules intended to limit the negative effects of war. The principle thrust of the law is to limit the methods of warfare (e.g., by banning certain weapons) and to protect people not engaged in combat, such as POWs, the sick and wounded, and civilians. This class will focus on the most important sources of IHL, which include the 1949 Geneva Conventions and their two protocols, the 1907 Hague Regulations, and various other rules contributing to the customary international law of armed conflict. Most of IHL applies only to international armed conflict. The class will also consider the special challenges raised by the application and adaptation of these rules to internal armed conflict and to the so-called “war on terror.” Finally, the class will briefly consider the use of international tribunals as an enforcement mechanism. The course may be taken either as a seminar, requiring a seminar paper, or as a course with an exam. Two credit hours.
(added 11/09)

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Law 236 International Intellectual Property. This course will examine issues related to the international protection of intellectual property. The course will survey various international agreements and treaties for copyright, patent, and trademark, focusing on the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) of the World Trade Organization. In addition to exploring the basic concepts of territoriality, national treatment, and minimum standards, we will consider political and policy concerns related to efforts to secure and strengthen protection of intellectual property around the world. Prerequisite: any one of Copyright Law, Trademarks and Unfair Competition, or Patent Law, taken previously or during the same semester as this course. This requirement may be waived only with permission of the instructor (for example, based on a student's familiarity with intellectual property). Three credit hours.
(revised 4/10)

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Law 383 International Law. This course introduces students to the key concepts and doctrines of international law. Students learn the sources of international law such as custom and treaty, the role of international organizations such as the United Nations, the bases of international jurisdiction, laws governing the use of force and the protection of human rights, and the constitutional structure of U.S. participation in the international legal system. An understanding of these core concepts, rules and institutions is vital to more advanced and in-depth study of world events, such as the Persian Gulf crisis and war in 1990-91 and the disintegration of the Soviet Union in 1991-92, and places these events in the context of the development and application of international law. The course also examines the development of regional organizations such as the European Union and North American Free Trade Agreement and the role the institutions of these arrangements play both in international and municipal legal systems. Three credit hours.

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Law 312 International Organizations. This course will focus upon the legal and policy issues raised by the development and functioning of intergovernmental organizations, with the emphasis on organizations having wide membership, particularly the UN. It will encompass a course in United Nations law and a comparative study of international organizations with a focus upon how these organizations deal with human rights issues. Issues relating to rulemaking, dispute settlement, and enforcement will be central to this course. It will consider, among other topics, the privileges and immunities of international organizations, relations between the United States and the United Nations, the past role of and future composition of the Security Council, and restructuring proposals for the economic and social functions of the U.N. Three credit hours.
(added 11/04)

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Law 384 International Trade. This course involves a comprehensive study of the international trading system, with attention to the role of the General Agreement on Tariffs and Trade, the IMF, and regional and bilateral trading arrangement (e.g. the European Union and the U.S.-Canada Free Trade Agreement). The U.S. legal system with respect to international trade will be considered in detail, including discussion of constitutional issues, treaty-making, and Congressional and Executive authorities. Attention will be given to specific legislation and regulations involving export and import controls, as well as remedies against unfair trade practices. Current issues such as the implications of the EU's 1992 plan, the treatment of nonmarket economies, trade-related aspects of intellectual property, trade in services, and controls on the use of economic sanctions will be analyzed. Three credit hours.

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Law 244 International Trademark Law. In an era of free trade and globalization, it has become increasingly important for business owners to obtain, protect, and enforce their marks globally. This course will cover the international norms (the Paris Convention and TRIPS) that now dictate the substantive trademark laws according to which nations can protect trademarks, as well as regional trademark harmonization instruments such as the EU Trade Mark Directive. It will also examine some of the international mechanisms that facilitate the acquisition and enforcement of trademark rights-–specifically focusing on the Madrid Protocol & Agreement--and the Community Trade Mark system. Two credit hours.

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Law 210 Introduction to the American Legal System. This course provides an overview of American constitutional and procedural law, with an introduction to the U.S. judicial system, legal methodology, and government structure. The course is open only to exchange students and students in the LL.M. Program in International and Comparative Law. Two credit hours.
(added 5/03)

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Law 456 Juries, Judges & Trials. This course will look at juries and judges as decisionmakers, but will focus primarily on the jury. As background, we will examine the constitutional rights to a civil and criminal jury trial, and then focus on such features of the jury as venire, voir dire, peremptory challenges, instructions, deliberations, and differences in perception. We will consider the scope of jury authority, including jury nullification, as well as various models for the proper role of the jury in our society. There will be a take-home exam at the end of the course. Three credit hours.

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Law 346 Jurisprudence. Many people submit to the law simply because they believe that the institutions administering it are just. But what if a law itself is unjust? The duty to obey law presupposes that laws are both consistent and just: because they sometime aren't, difficult cases arise in which appeals to a higher political morality become necessary if justice is to be served. But what is this higher political morality and what is its connection to the institutions we rely upon to do justice and protect our human rights as well as to the laws that are actually produced? Is this higher political morality the morality of our society or something broader? And, if it is something broader, how do we discover what it is? In this course, we will attempt to answer these and other questions by considering the relationship between legal and political philosophy, showing how the former is incomplete without the latter. Taking the problem of how to solve difficult cases as our point of departure, we will look at the inherent incompleteness of conventional theories of law with the idea of developing a meta-theory that would enable judges to decide difficult cases by drawing upon the best available theory of politics appropriate to the case's level of abstraction. By so doing, it is hoped that we will be able to produce resolutions for some kinds of controversial cases and open doors to the way we should think about others. It is also hoped that the course will provide an avenue for a broad critique of the way legal and political institutions operate including the way law schools educate and judges actually decide cases. Two credit hours.

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Law 506 Justice and Technology Practicum. Students will explore access to justice issues, including the use of technology in law practice and legal services, alternative legal services delivery models, e-lawyering, unbundling and pro se litigant assistance. Class meets for one (1) hour each week to discuss assigned readings on these topics. Additionally, for twelve (12) hours a week students work on client service and drafting projects with the Center for Access to Justice & Technology (CAJT), whose mission is to provide low-income individuals with greater access to the legal system through the use of internet technology. The practicum provides students with experience in assisting self-represented litigants and providing legal information to low-income individuals. Students will also draft automated court forms and instructions for pro se litigants and the public. A variety of legal topics are available for student projects, including landlord/tenant, domestic relations and consumer rights. These drafting projects include the following activities: researching, drafting, and editing Web-based legal education materials and legal forms with instructions for the public, and developing plain language user interfaces for Web based document assembly. Some audio/video production may be used in creating these materials. The practicum requires twelve (12) hours per week spent on practicum activities outside of class. No prior technical training is required beyond normal computer familiarity with word processing. Students may earn additional credit the following semester by arrangement. Four credit hours.
(added 4/10)

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Law 329 Juvenile Law. This course examines federal and state laws and cases involving juveniles. The Illinois Juvenile Court Act is covered in depth. Areas covered include delinquency, neglect, adjudications, dispositions, sentencing alternatives, social service agencies and constitutional safeguards for minors. Three credit hours.

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Law 156 Labor and Employment Considerations Impacting the Start-up and Evolution of a Privately-Owned Company. Students will confront the labor law issues that a company experiences from its start-up stage through important phases of its business life. Students will be assigned the role of legal representative for the company, employees, or union in several specific business transactions that impact the employment relationship. The class will focus on events that include the start-up and expansion of the business; a union organizing effort; the negotiation and application of particular provisions of a collective bargaining agreement; the acquisition of another company; a downturn in the business resulting in the layoff of employees; and finally, the sale of all or part of the company. As students are exposed to the labor issues that arise under these transactions, they will be asked to provide their clients with both practical and legal advice on various courses of action. Two credit hours.
(added 11/10)

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Law 380 Labor Law. An examination of the theory and practice of the law governing the relationships between labor unions and employers. Among the topics covered are: the historical background of labor relations law; union organizing and the law; procedures for the selection of union representation; the law and process of collective bargaining; strikes, boycotts and picketing; and grievance and arbitration procedures. Four credit hours.

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Law 401 Land Use. A course exploring land use controls such as zoning and subdivision regulations as exercised by local and state governmental units. The course analyzes the history of land use controls and explores topics such as flexibility and discretion, improper influence and corruption, alternative land use control schemes, suburban zoning and racial/economic exclusion, environmental protection by land use schemes, and growth control. In the process of exploring land use controls, the course analyzes the local institutions and procedures, constitutional issues, and the question of when an improper taking of property occurs in our legal system. Three credit hours.

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Law 471 Law, Economics and Justice. This course is a "capstone" course that will review basic doctrines covered in the first year courses (property, contracts, torts, criminal law, and procedure), and possibly other topics, with the purpose of exploring the extent to which those doctrines and areas of law can be explained, justified, criticized, or revised from the perspectives of economic efficiency and justice. Students who take the course should benefit from a more systematic analysis and review of the basic legal doctrines that form the foundation for most of the law, an understanding of basic (microeconomic) efficiency theory as applied to the law, a better understanding of the principles of justice and their application to various areas of the law, and an ability to recognize, employ and criticize efficiency and justice arguments in and outside the law. Three credit hours.
(added 11/06)

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Law 250 Law, Literature and Feminism. This course will examine the development of feminist legal theory by focusing on several cases, writings of theorists, and novels that provide further illustration of the theories. The early advocates of women's rights argued in court cases for equality; this theme is also developed in Zora Neale Hurston's novel, Their Eyes Were Watching God. The Supreme Court case focusing on maternity leave raised the question whether women should be arguing for equality or difference; Toni Morrison's novel The Bluest Eye asks a similar question. Catharine MacKinnon and Carol Gilligan gave the debate a slightly different turn, with MacKinnon focusing on the need to rectify an existing power imbalance and Gilligan emphasizing an appreciation of difference. Both these approaches intersect in Gloria Naylor's The Women of Brewster Place and Cristina Garcia's Dreaming in Cuban. The course will require attendance, participation, four ungraded writing assignments (1-2 pages), and a take-home final exam. Two credit hours.
(added 5/03)

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Law 155 Law and Human Behavior. This course will explore the implications of recent social science research on human behavior for law and legal decision-making. In the past few decades, new discoveries in psychology, cognitive science, neuroscience, and economics have challenged fundamental ideas about how people think and decide. We will consider their application to a variety of areas of the law including criminal and civil law and jury decision-making. Topics will include happiness and hedonic psychology, the role of emotion and reason in decision-making, creativity, risk assessment, and free will. Students in the seminar will write a substantial research paper. Students in the course will write a series of short (2-3 page) analysis papers. Two credit hours.
(added 11/10)

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Law 252 Law of Privacy. Privacy may be one of the most pervasively discussed issues in this decade as a result of the increased concerns for security in travel, the openness of the Internet, the consolidation of information in massive databases both by corporations and by governments, high incidence of identity theft, and the development of more and more highly sophisticated "listening and viewing" devices. This class examines privacy as protected by statute B through a patchwork of privacy acts B and the concomitant freedom of information requirements of a democratic government, as developed through tort doctrine in the courts, and as articulated through the Constitution of the United States and those of the various states. All aspects of privacy are considered, including wiretapping, government-required personal and business information, personal, family, and reproductive autonomy, the "right to be let alone," and the right of publicity. Three credit hours.

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Law 237 Law of Trade Secrets. This course examines trade secret law, a fourth intellectual property regime. It will include the common law development of trade secrets as well as the philosophical underpinnings in contract, property, and tort law, and the development to the present through the Restatement and the Uniform Trade Secrets Act. It will also examine the relationships between federal and state trade secret law, the relationships between trade secret law and the other three intellectual property regimes, and the relationships between trade secret law and other areas of law, such as employment law and law governing business relationships. Three credit hours.
(added 12/02)

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Law 154 Law Practice Management. This course will provide practical education on business skills that help achieve success for lawyers, whether the student intends to work in a small or large firm, own a firm, or take a position in a corporate or government legal department. It focuses on recent trends and challenges of the legal industry. Designed to prepare law students for the realities of the practice of law, it will address the economics of the law business, work place communication skills, management quandaries, ethical problems, client service and development fundamentals, and how junior lawyers can be the most valuable to their law firms, corporate law departments, or agencies. The course will use a text on law practice management and additional case studies, court decisions, and articles. The class is highly participatory, with simulations and frequent class discussion and presentations. There may be modeling or papers to be developed during the semester. The final exam will be a take-home written problem or series of problems that are encountered when managing, operating, owning, or working in a law firm or law department Two credit hours.
(added 11/10)

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Law 467 Lawyer as Investigator. In this course, we will explore how lawyers gather, analyze, and present facts. While law school does a marvelous job training students to find the law, it has ignored the vital role lawyers play in discovering the facts. This role has garnered much attention lately as lawyers have been accused of breaching ethical duties thru techniques, such as pretexting, used in the Hewlett-Packard scandal. While criminal litigators have focused extensively on this role, civil lawyers also do a great deal of investigating. Lawyers will do more of these as more regulation is imposed on corporate America thru legislation, such as Sarbanes Oxley. Accordingly, students will learn how to: (1) develop physical evidence; (2) conduct interviews and interrogations; (3) process physical evidence; (4) retrieve electronic evidence; (5) use investigators and experts; and (6) utilize formal discovery. Students will be required to develop two investigation plans - one for a criminal case, one for a civil case. Students will also be required to do several presentations to the class. Class participation will also count toward the final grade - there will be no final exam. Three credit hours.
(added 11/06)

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Law 267 Legislative Advocacy. Corporations, public interest groups, governmental entities and other business clients frequently seek advice on legislative matters. Lawyers need to know how to access and communicate legislative information to their clients, and be adequately informed about the legislative process. This course is designed to train students in effective advocacy techniques to competently present matters to policy makers and work within the legislative process. The course is divided into four general modules: the law of politics; the legislative process; lobbying; and effective advocacy techniques. In addition to the traditional lecture format, students will learn through the use of role-playing, research assignments and a hands-on advocacy assignment involving actual legislation. Students will learn how to research legislation, present initiatives to policy makers, and influence the process. Two credit hours.

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Law 239 Management of Intellectual Property Portfolios. This class examines the various types of business and personal transactions that implicate or center on intellectual property assets, particularly where business and legal considerations tend to collide. Topics include the securitization of intellectual property; intellectual property valuation for various purposes; tax consequences of intellectual property transfer; strategic use of intellectual property through licensing and litigation; due diligence in assessing intellectual property portfolios for mergers and acquisitions; and the role of intellectual property in bankruptcy. Prerequisites: Intellectual Property in the High Tech Era, or completion of two of the following courses: Copyright Law; Patent Law; Trademarks &
Unfair Competition; Law of Trade Secrets. Two credit hours.
(added 11/05)

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Law 334 Medical Malpractice. This course will examine various topics relating to medical malpractice litigation. Among the topics to be considered are: pleadings, discovery, expert testimony, damages, statutes of limitations, res ipsa loquitur, informed consent and independent contractor issues. Two credit hours.

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Law 484 Mental Health Law. This course covers all aspects of the law dealing with persons with mental health needs and their treating professionals. Topics covered include, but are not limited to, mental health treatment both in-patient and out-patient, confidentiality laws and rules, mental health records, duty-to-warn situations, treatment of children, guardianships for persons with mental health issue, government regulations and benefits which might apply, services available, accommodations in the workplace and in public situations, estate and trust planning, etc. The course will deal with mental health issues at all ages, and with the many ways in which they can and should be addressed by attorneys and the families or professionals they are advising. Two credit hours.
(added 11/07)

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Law 157 Multinational Business Bankruptcy and Reorganization. The growth of multinational companies has led to a need to coordinate liquidations and reorganizations across country borders. This course will focus on how the U.S., the European Union, and other countries have addressed this growing area of the law. The course will begin with a brief survey of business bankruptcy and debt reorganization law in the U.S. and other major commercial jurisdictions and then focus on cross-border matters. A basic course in bankruptcy will be helpful but not needed.  Classes will involve some lecture, with an emphasis on hypothetical situations and open class discussion. Mid-way through the semester, each student will be expected to identify a topic of interest that will be the subject of a scholarly article to be produced by the end of the semester.  This should be a helpful course for anyone interested in international law, business finance, or business bankruptcy. Two credit hours.
(added 11/10)

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Law 204 Music Law. This course examines the legal aspects of the music business. We will cover the esoteric language, deal structures, and issues in the music business. Topics include copyright related to music and recordings, music publishing, recording agreements, artist representatives, intra-group agreements and business structure, live performance and touring, and the impact of new technologies on the music industry. Gues speakers will address the class from time to time, including talent agents, talent buyers and managers, recording artists, music publishers, an artist's webguru, record company executives, and performing rights organizations.
(added 11/08)

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Law 240 National Security Law. This course addresses legal and policy issues associated with the U.S. government's national security activities and organizations, with a particular emphasis on legal issues regarding terrorism.  Among the topics we will cover are the rules governing the President’s use of military force, military detention, and targeted killing; military commissions and other vehicles for the prosecution of war crimes; the current debate regarding national security courts; the legal regulation of interrogation; and covert action and intelligence gathering. We will also discuss other current national security issues as they develop. Two credit hours.
(added 11/09; revised 11/10)

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Law 255 Nonprofit Law. Nonprofit organizations -- including churches, hospitals, universities, cultural institutions, social service charities, advocacy groups, unions, trade associations, and social clubs -- make up about 10 percent of the economy. Their operations and role in society raise important and difficult issues that cut across a variety of legal fields. In addition, as "ownerless" enterprises serving the public good, nonprofits present challenges for good governance, public oversight, and appropriate public subsidy. We will study the relevant aspects of constitutional law, trust and property law, corporate law, and tax law. Three credit hours.

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Law 402 Patent Law. Public policies underlying various invention protection systems are analyzed as background for understanding the fundamental concepts of U.S. patent law. The nature of patentable subject matter in the U.S. and the statutory requirements of utility, novelty, and nonobviousness are examined in detail. Students also consider the process of obtaining and enforcing patent rights. Such consideration includes an overview of the disclosure, enablement and claim requirements for a patent application, as well as the scope of protection granted to the owner of an issued patent. The interpretation of patent claims is covered, with special emphasis placed on construing claims under the evolving doctrine of equivalents. Remedies for patent infringement are also reviewed, as well as the defense of patent misuse. Three credit hours.

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Law 211 Patent Litigation. Students will examine major issues of substantive law and strategy facing a lawyer involved with patent litigation. The class sessions will focus on the leading cases in emerging areas of patent law. Such areas include venue and transfer, protective orders, claim construction, infringement under the doctrine of equivalents, the scope of remedies available to a patent owner, and the role of a jury in deciding complex technological issues. The class will also address procedures for analyzing patent infringement disputes and for considering when, where and why to bring patent infringement lawsuits. Prerequisite: Patent Law. Three credit hours.
(revised 4/10)

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Law 284 Patent Office Practice. This course focuses on the substantive and procedural requirements for preparing and prosecuting patent applications. Strong emphasis is placed on drafting patent claims and preparing effective responses to rejections of applications by the U.S. Patent Office. The course also covers other aspects of practice before the Patent Office, including interviews, appeals, and applications for the reexamination and reissue of a patent. The nature of nonobviousness, the doctrine of equivalence, and the patent applicant's duty of candor are reviewed in detail. Patents is a prerequisite. Three credit hours.

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Law 276 Personal Income Tax. A study of the federal income tax laws as they affect individuals. Major topics include: identification of income, deductions, exclusions, and credits; assignment of income; timing principles; capital gains and losses; and deferral and nonrecognition provisions. Three credit hours.

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Law 219 Police Misconduct Litigation. This is an advanced practicum examining selected topics in the litigation of civil rights cases involving allegations of police misconduct. We will undertake a detailed examination of an actual police misconduct case as a vehicle for understanding the doctrines and practice problems arising in civil rights litigation. The practice problems will involve a variety of legal tasks from a hands-on, practical perspective that will require class members to engage in different forms of legal writing and speaking, designed to develop your litigation skills. The class will be jointly taught by two practing attorneys, one who represents plaintiffs in civil rights cases and one who defends police officers and municpailities in such cases. These attorneys have gone head-to-head against each other in multiple police misconduct cases and their experience will bring a unique real-world perspective to the class. Grades will be based on a combination of your written work product, skills practice exercises, and participation in class discussion. There will be a number of written and oral project assignments of different lengths during the semester. These projects are intended to expose you to the litigation process in the specific context of a police misconduct civil rights case, including pleadings, the development of discovery, briefs, and various motions.  At some point during the semester, all students will be required to observe a portion of a civil rights trial in the United States District Court. Two credit hours.
(added 11/09)

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Law 271 Practice Before the Federal Circuit. This unique course will focus on the practice of law before the Court of Appeals for the Federal Circuit (CAFC). The CAFC has exclusive appellate jurisdiction to hear patent cases and appeals from the U.S. Patent and Trademark Office, as well as cases involving several non-patent related issues. Prerequisite: You must have taken, or presently be taking, Patent Law. Course Requirements: (1) The course will begin in September, but will also include several classes in January. Students will be required to attend class on most Mondays during the Fall semester from 7:35 - 9:25 p.m. (2) Students will be required to compete in the Chicago-Kent intramural Giles Rich Moot Court Competition, submitting an appellate brief and presenting an oral argument on a Saturday afternoon in January. The problem used for the intramural competition will consist of the Giles Rich Moot Court Problem. Such problems frequently involve patent law and occasionally trademark or trade secret law. Why take this course? This course will teach you appellate advocacy, both with respect to how to identify the issues and write a convincing appellate brief and how to prepare for, and present, a winning oral argument. Top students in the class will be invited (but not required) to represent the school in the Giles Rich Moot Court Competition. Chicago-Kent students taking this course last year placed second in the Midwest Regional Competition and advanced to the National Competition in Washington, D.C. Two credit hours.
(revised 4/04)

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Law 470 Practicum in Business Transactions. This course will introduce students to "real life" business transactions through a series of simulations. The transactions covered will include business acquisitions and combinations (M&A), joint ventures, project finance and other financings, purchase and sale arrangements, licensing arrangements, distribution arrangements, and dispute resolutions. Students will work in teams on opposite sides of a transaction and will walk through all stages in the evolutions of a transaction (planning, negotiating, drafting, closing). Time permitting, ancillary issues such as tax and regulatory matters will also be considered. Two credit hours.
(added 11/06)

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Law 350 Products Liability. A study of the source, development, and limits of the law of products liability, including theories of liability rooted in negligence, warranty, and strict liability and the liability of sellers, manufacturers, and others to users, bystanders, and other parties for "defective" products. Two credit hours.

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Law 464 Public Interest Law and Policy (Prof. Shapiro's version). This course offers an overview of the issues faced by lawyers representing low income clients, lawyers who serve under-represented and disenfranchised groups, and lawyers who otherwise work in the public interest. The course will begin with an investigation of the meaning of public interest law. The bulk of the course will address the real-world work of public interest lawyers through a focus on particular cases, legislative initiatives, and other efforts to engage in public interest law. Subjects that may be explored include income support for low income people, low income housing, medical care and disability rights, nutrition, racial justice, women's rights, the environment, and access to courts. In addition, the course will explore ethical issues that arise when lawyers represent low-income clients and professionalism questions that are raised by the special role lawyers play in providing access to justice. Three credit hours.
(added 11/10)

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Law 464 Public Interest Law and Policy (Prof. Staudt's version). This course offers an overview of the issues faced by lawyers representing low income clients and lawyers who serve under-represented and disenfranchised groups. The course will begin with an investigation of the meaning of public interest law. The bulk of the course will cover the key cases decided and legislation passed since the 1960s when the Johnson Administration launched its war on poverty in the United States. These cases may include court decisions and legislation affecting income support for low income people including federal welfare programs, social security and state general assistance programs. Low income housing, medical care, nutrition and access to courts may also be explored. In addition, the course will explore ethical issues that arise when lawyers represent low income clients and professionalism questions that are raised by the special role lawyers play in providing access to justice. Three credit hours.
(added 4/06)

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Law 469 Real Estate Fundamentals and Syndications. This course will take a practical approach to understanding current issues in real estate. Covered topics will include syndications, tax and securities law implications, real estate financing, zoning and land use, title and survey review, leases, condominium development, closing and post closing issues, Forcible Entry and Detainer, and commercial real estate asset management. Two credit hours.
(added 11/06)

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Law 280 Remedies. The course addresses the forms of relief available through the judicial process. Among the topics covered are equitable remedies such as injunctions and specific performance; damages; restitution; remedies for injuries to tangible and intangible property, personal injuries, breach of contract, and invasions of civil rights. Three credit hours.

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Law 377 School Law. This course briefly explores the historical underpinnings and the sources of state and federal power relating to an entitlement that we take for granted: free public education. Additional topics include many issues that are continually in the news and in the courts: church-state conflicts (especially school prayer and school vouchers); desegregation, school financing, student disability accommodations, free speech issues (both students and teachers); and other student rights (including locker searches, dress codes, and due process). Two credit hours.
(revised 4/07)

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Law 361 Securities Regulation. A study of the Securities Act of 1933 and the Securities Exchange Act of 1934. Among the topics included are: the registration and distribution of securities by issuers; exemptions from the registration requirements; offerings by underwriters and dealings; reorganizations; federal disclosure obligations; regulation of the securities markets, broker-dealers, proxy rules, tender offers, and civil liabilities for insider trading, Rule lOb-5 and shout-swing profits. Three credit hours.

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Law 460 Sexual Orientation and the Law. [Prof. Baker's section] This course will examine the legal treatment of sexual orientation. We will begin by studying the non-legal texts that have helped construct contemporary understandings of sexual behavior and attraction.  We will then move on to explore (i) the extent to which the law regulates same-sex sex itself, (ii) the constitutional treatment of gay men and lesbians as a class, (iii) the extent to which expressions of sexual identity can be protected as speech, and (iv) the state of the law of workplace discrimination as it pertains to gay men and lesbians.  We will conclude by evaluating gay and lesbian families, paying particularly close attention to the legal treatment of gay couples and legal treatment of gay parents.  Three credit hours.
(added 11/09)

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Law 460 Sexual Orientation and the Law. [Prof. Samar's section] Despite important recent changes at the local, state, and national levels, and in some foreign countries and the European Union, to protect gay men, lesbians, bisexuals, and transgendered persons (LGBT) from discrimination and to recognize same-sex relationships, society’s attitude toward homosexuality and transgendered issues continues to be ambivalent. This is especially true in respect to marriage and child rearing, as we see in the current debates over same-sex marriage, but it is also found in the attitudes of states that fail to protect against public and private employment discrimination, and in the federal government’s “Don’t Ask/Don’t Tell” policy to keep openly gay persons from serving in the military. This course/seminar will explore the possibility of finding a legal, philosophical or political framework for approaching LGBT issues by critically looking at various conceptions of homosexuality and society’s purported justifications for affecting this behavior, against its broader concerns for guaranteeing social liberty and human equality. It will then apply this understanding to the interaction between gays and the criminal justice system; discrimination in public employment (including military service) and private employment; first amendment issues posed by gay teachers in public schools and universities; the legal problems faced in establishing same-sex relationships (especially
marriage) in Massachusetts and elsewhere; and the legal problems gay people confront in matters pertaining to child custody and visitation rights. Central to the course will be locating possible interpretations for the Supreme Court’s 2003 interpretation in Lawrence v. Texas, and its 1996 decision in Romer v. Texas. This particular area of the law is really several areas as they relate to gays, lesbians, bisexuals and transgendered people. LGBT have been a kind of exception to the way the law traditionally operates, and this exception cannot usually be made sense of in terms of traditional legal thinking. For this reason the course will engage a certain degree of theoretical abstraction to undersand, clarify and hopefuly improve the law in these areas. Two credit hours.
(revised 11/07)

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Law 216 Sports, Law and Society. This course will address sports, society, and law as a dynamic function of history, economics, and culture in America. The focus will be on legal issues unique to professional and amateur sports, including (a) the paradox of sports as a business that embraces competition on the field but not off, (b) the entertainment value of sports as a function of hero worship and the vicarious pursuit of personal identity, (c) the history and influence of society on sports, and (d) the effect of sports on society, including politics (Muhammad Ali), business (the Jordan effect), and sociology (such as the 18-year continuum from Jesse Owens to Satchel Paige, Jackie Robinson, and ultimately Brown v. Board of Education). Topics will include the baseball antitrust exemption, athlete eligibility, due process, sports injuries and violence, the evolution of sports broadcasting, Title IX, disabled athletes, drugs, and such contemporary issues as the Cubs rooftop cases, baseball steroids, and sports violence. Two credit hours.
(added 11/04)

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Law 245 State and Local Government Law. In 1805 there lived a total of approximately 5.3 million people in the United States B far fewer than the 6 million people who today live in Massachusetts or any of 15 other States of the Union. In 1828 James Fenimore Cooper, an American born commentator on American life, took note of the burgeoning population growth and projected that in one hundred years America's population might reach "near or quite 100 million." Continue Cooper, "the first impression that strike the mind is the impossibility that 100 million people should consent to live quietly under the same government." Today's population, of course, is not only much larger but is far more diverse than Cooper imagined. One of the reasons our country has been able to grow and still remain united, ironically, is that under our federal system much political power is decentralized at the state, local, and other subfederal levels. And that is what this course is about: the decentralization of power. The course explores the conflicts inherent in the allocation of power between the national, state, and local governments. It tries to answer questions like: Why do we still have states? What are the maximal powers that states and local governments have, and should have, to create environments that both shape and reflect their citizens' desires? In answering these and related questions the course will look to both law and political theory. Explored in detail will be many of the constitutional doctrines that define our country's federal structure. Also examined will be vital doctrines concerning local government formation and annexation, statutory and home rule powers, the relationships between local governments (including city : suburb), participation in local government, as well as important issues in taxation and finance. Three credit hours.
(revised 4/07)

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Law 477 Strategic Counseling to International Clients. This course is designed to introduce foreign lawyers to legal issues facing international organizations wishing to invest in the United States. From the planning phase to the actual implementation of the investment, students will be involved in all practical aspects of strategically counseling international clients to identify issues, prevent liability, and overcome legal barriers associated with their business pursuits in the U.S. The course is open only to exchange students and students in the LL.M. Program in International and Comparative Law. Two credit hours.
(added 8/07)

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Law 309 Strategies in Intellectual Property Law. This course is one of the three ways in which students participating in the Intellectual Property certificate Program can satisfy the requirement of a Capstone Experience. (The Capstone Experience requirement may also be satisfied by participation in the Intellectual Property Law – Patent Clinic, or the completion of an Intellectual Property Externship). The course may be taken only by J.D. students enrolled in the Intellectual Property Certificate Program. It is intended to be taken in the last year of legal studies. This is a problem-solving course that will bring together learning from different intellectual property courses and from non-intellectual property courses, bringing home the inter-relationships between different bodies of law and asking students to apply that knowledge to a concrete problem faced by a fictional client. The course will be taught by several faculty members. During some class meetings, the class will meet as a group. Between these "team" meetings, the class will break into smaller groups (of approximately 8-12 students). These smaller groups will work with teams of two faculty in researching and discussing particular parts of the overall problem, will make oral reports to other members of the small group, and after the small group decides on the appropriate strategy will make oral and brief written reports to the entire class. The entire class will then discuss how best to advise the client to proceed and how best to effectuate the social and commercial objectives of the client. The course is intended to allow students to develop an appreciation of the contexts in which intellectual property problems arise, how to apply knowledge developed in intellectual property and other courses to a concrete problem, the considerations (legal and non-legal) that guide how lawyers approach those problems, and the real-life dynamics that affect the practice of intellectual property law. The class will be graded on a pass/fail basis, based upon performance in class (both when the entire class is present and in small groups) and based upon oral and written presentations. Three credit hours.
(added 11/03)

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Law 310 Tax Planning for International Business. This course provides an introduction to the U.S. tax structure that applies to international transactions, i.e., investment and business undertakings by U.S. persons overseas and similar undertakings by foreign persons in the U.S. The first part of the course will use a problem approach to examine the basic U.S. tax principles governing international transactions (including a discussion of treaty implications). The second part of the course will examine strategies in the formation, acquisition, financing, operation and disposition of international business activities. Two credit hours.

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Law 491 Tax Policy. This course will cover the following topics: the legislative process in enacting tax legislation; the intended and unintended consequences of legislation (e.g., the alternative minimum tax and the estate tax); comparisons of the U.S. tax system with other countries, addressing issues of fairness and compliance; how tax policy has been used, and will be used in the future, to address economic and social issues (global warming, energy conservation, subprime mortage, poverty); and how the judicial system affects tax policy. Two credit hours.
(added 4/08)

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Law 580 Tax Procedure. This course involves a study of the procedural aspects of the federal income tax system, with special attention to the tax controversy process. Topics include the organization of the Internal Revenue Service, professional responsibilities in tax practice, returns, statutes of limitations, interest, civil penalties, audits and administrative appeals, assessments, refunds, litigation forums, IRS investigatory powers, and collection procedures. Two credit hours.

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Law 428 Taxation of Business Enterprises. This course examines and compares the federal income tax treatment of the various forms of business enterprises and their owners. We begin with the traditional corporation, which is treated as a taxpayer separate from its owners. Because of the important changes made by the Tax Reform Act of 1986, we devote the second half of the course to the "conduit" business vehicles -- partnerships, S corporations, and limited liability companies. Topics covered include: organizing and setting up the capital structure of the entity; how operations are taxed; transactions between the entity and its owners; taxable or tax-deferred sales or termination of the entity, and "exit strategies" for the owners; and the choice of entity for various business purposes. Four credit hours.

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Law 203 The Corporation and the Constitution. This course will investigate the origin in law of the corporate form and explore the challenges presented by the modern corporation, both from the standpoint of its legal structure as a business organization formed by law, and the rights and privileges afforded corporations under case law that interprets the corporation as a jural “person.”  Readings will be considered from colonial charters to the recent U.S. Supreme Court decision in Citizens United v. FEC (2010).There will be special emphasis on the contracts and commerce clauses of the Constitution, as well as the 14th Amendment. This course is not so much concerned with corporate responsibility as it is with corporate governance and accountability. We will explore the concept of limited liability, trace the evolution of legal personhood, examine the original public purpose requirement of the corporate entity as contemplated in law, and consider the role of public law in the world of the self-regulating market.
(added 4/09; revised 4/10)

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Law 458 Topics in Comparative Constitutional Law. This course examines issues of constitutional design and adjudication in comparative perspective. We will compare various constitutional systems, focusing on the role and structure of constitutional courts, approaches to judicial review, the relationship between different branches and levels of government, and the constitutional protection of individual and group rights. Prerequisite: Constitutional Law completed or taken concurrently. (This course was formerly entitled "Comparative Constitutional Law.") Two credit hours.
(revised 4/10; title changed 4/10)

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Law 120 Topics in Cultural Heritage Law. This course focuses on the claims of discrete cultural groups, nations, and indigenous peoples to both tangible and intangible forms of cultural property. It covers a range of topics including ownership of antiquities, protection of cultural heritage during times of war, repatriation of cultural property and art looted during war, historic preservation, cultural property of indigenous people, traditional knowledge, and traditional cultural expression. (This course was formerly entitled "Property and Culture.") Two credit hours.
(added 4/09; revised 4/10; title changed 4/08)

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Law 487 Topics in U.S. Legal History. This course will examine some of the most contested topics in U.S. legal history, such as how law shaped the transition from slavery to freedom, how it participated in creating the modern nation, the ways in which it defined and created citizenship, and how various social movements used the courts as part of wider grass roots campaigns. We will treat law as reflecting and shaping politics, society, the economy, and culture. We will study not only case law and the specific facts that gave rise to particular court cases, but also how law shapes people’s identities. Readings will include a wide-range of secondary scholarship and primary documents, including briefs, trial transcripts, and items of popular culture. The class also will be particularly concerned with what methodologies various authors have used and the stories that they tell (or do not tell). Two credit hours.
(added 4/08)

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Law 416 Trademarks and Unfair Competition. This course covers the creation, maintenance, and enforcement of trademark rights, as well as related forms of protection under principles of unfair competition law. The course includes an examination of the public policies and economic considerations underlying trademark law, as well as all the basic issues (such as the prerequisites to trademark protection, the registration process, the grounds for excluding signs from protection or registration, the scope of trademark rights, restraining the distribution of imitation and counterfeit goods, and remedies available in trademark litigation). The course will also cover protection available under the general rubric of unfair competition law (including prohibitions on false advertising), as well as publicity rights afforded by state laws. In addition to these basic issues, the course will address issues of current interest, such as: protection of non-traditional subject matter such as product designs or colors; conflicts between trademark protection of non-traditional subject matter and the copyright or patent laws; protection of trademark rights against dilution, and the conflicts with free expression that this and other protection might precipitate; licensing of trademark rights; and reconciling the rights of competing users of trademark terms. Throughout, the course will address the application of trademark principles in new as well as traditional media, and will consider the problems raised by online use of trademarks (in such contexts as metatagging, hyperlinking, sale of keywords, domain name warehousing, and cybersquatting). Three credit hours.

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Law 416 Transportation Law. Transportation and logistics is a multi-trillion dollar industry. Every item you purchase or use in your everyday life was delivered by a truck or other mode of transportation (rail, ocean, air).  America could not function without the transportation industry. There have been a series of deregulations affecting the transportation industry over the years. After September 11, 2001, cargo security became an important issue for the United States, which lead to many new laws and regulations. This constant roller coaster of deregulation and regulation makes being a transportation attorney very exciting. This course will briefly describe the different modes of transportation and the regulating bodies for each. We will be focusing our class on the surface modes of transportation, namely trucking and rail. The main topics discussed will be contracts, tariffs, liability for loss and damage to cargo, tort liability of shippers, carriers, customers, and brokers during and after the transportation of freight and a comprehensive understanding of insurance and the various policy forms that exist. Two credit hours.
(added 4/09)

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Law 398 Workers' Compensation Law. This course will study the rights and responsibilities of injured employees and their employers under workers' compensation and occupational diseases statutes. Third-party actions also are examined. Two credit hours.

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LITIGATION AND PRACTICE SKILLS

Law 575 Alternative Dispute Resolution. This course provides an introduction to negotiation, mediation, and arbitration as alternatives to traditional litigation, and studies the ADR movement in general. The course will combine lectures and class discussions based upon assigned readings with a series of increasingly complex simulated exercises, with the goal of exposing students to the theory and practice of various ADR techniques. You may not take this course if you have taken either negotiations or mediation. Two credit hours.

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Law 406 Appellate Advocacy. This is a required course for new members of the Chicago-Kent Moot Court Honor Society. The goal of the course is to provide students with advanced training in appellate litigation, and as such will concentrate on developing professional skills in brief writing and research, and oral advocacy. In addition, the course will include an introduction to various aspects of appellate procedure. Students will prepare a brief and will be required to participate in an intramural oral advocacy competition. The Moot Court Honor Society will choose members for Chicago-Kent's spring interscholastic competition teams based in large part on students' performance in this course. Two credit hours.

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Law 505 Business Entity Formation and Law 345 Business Entity Transactions. Business Entity Formation and Business Entity Transactions are two three-credit business courses that are offered as part of the Law Offices clinical education program. Both courses are taught with extensive use of simulation exercises. Business Entity Formation provides an opportunity for students to form various types of business entities including partnerships, limited liability companies and corporations. In Business Entity Transactions, students implement various business transactions such as employment and consulting agreements, shareholder agreements and agreements in connection with the purchase and sale of a business. In both courses, the students apply the legal doctrine learned in Business Organizations and other courses to a series of progressively more sophisticated simulation exercises and prepare the documents necessary, in Business Entity Formation, to create and organize the entities; and in the case of Business Entity transactions, to implement the various business transactions required by the exercises. In both courses the students utilize information gathering, planning, counseling and negotiating skills in the development of the documents. Each course is three credit hours.

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Law 238 Chicago Legal Clinic Practicum. The Chicago Legal Clinic, Inc. (not affiliated with Chicago-Kent) was established 23 years ago to offer low-cost legal services to laid-off steel workers and their families. Today the Clinic has four offices in Chicago and represents more than 12,000 clients a year, including victims of domestic violence, people with social security problems, clients with immigration issues, and organizations with environmental concerns. The Pilsen Office of the Chicago Legal Clinic assists people who are seeking to become U.S. citizens as well as persons with other immigration concerns. In addition to offering direct representation to individual clients, assistance is also offered at citizenship workshops. This practicum offers a practical overview to Immigration Law and includes, as cases permit, preparation of documents, attendance at government interviews and assistance at Administrative Hearings. The Clinic also provides representation to immigrants with consumer fraud problems. Opportunities include: gaining practical legal experience in the areas of immigration and consumer law with clients of the Chicago Legal Clinic; representing clients who are seeking to become U.S. citizens as well as others with immigration problems before the United States Citizenship and Immigrations Services; counseling immigrants, seniors and people with disabilities who have limited sources of income; creating web-based educational materials and presenting work-shops for social agencies, caseworkers, caretakers and potential clients. A 711 license is not required. Students are expected to work an average of 8 hours a week, in addition to a weekly meeting. No final exam. Two credit hours.
(revised 11/05)

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Law 324 Employment Litigation. Employment Litigation is a simulation course, designed to introduce students to the representation of a client in an employment discrimination case, from the initial client interview through a motion for summary judgment. Students are assigned as members of either the plaintiff or defense law firm, and work with a “senior partner”/professor in interviewing the prospective clients; preparing engagement letters; drafting a Complaint or an Answer; drafting and responding to written discovery; preparing for, taking, and defending depositions; and preparing or opposing a motion for summary judgment. Three credit hours.
(revised 5/03)

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Law 521 Environmental Law Clinic. The Environmental Law Clinic will help students develop their lawyering skills by giving them the opportunity to represent individuals and community organizations with environmental concerns. Students will interview clients, represent clients in meetings with corporations and government officials, and represent clients in court. Cases range from assisting an individual who discovers she has lead paint in her home to helping communities with problems arising from active facilities, abandoned sites, and proposed facilities. The class sessions will provide an opportunity to observe and practice lawyering skills, develop an understanding of the key substantive environmental law areas involved in the clinic's work, and discuss ongoing cases. Students are required to perform 10 hours a week of fieldwork for the 3-credit version of the clinic, and 12 hours a week of fieldwork for the 4-credit version, in addition to the classroom component. Students are required to perform 5 hours a week of fieldwork for the 1-credit version. The clinic is open to 8 students each semester. If a selection process is necessary, you will be notified regarding the interview process after you register for the class. There are no course prerequisites for this clinic. Students must have completed 30 credit hours to take the Clinic. One, three, or four credit hours.

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Law 588 Environmental Law Externship. Students in the Program in Environmental and Energy Law have the opportunity to explore environmental opportunities in the public and public interest sectors. These externships help students develop their legal research and writing skills and substantive knowledge of environmental law. Externships are currently available at several government agencies and public interest groups: the U.S. Environmental Protection Agency Regional Office, the Illinois Attorney General's Office (Environmental Division), the City of Chicago Law Department (Environmental Unit), the State's Attorney's office (Environmental Division), the Illinois Pollution Control Board, the Chicago Legal Clinic, the Lake Michigan Federation, the Illinois Commerce Commission, and the Environmental Law and Policy Center for the Midwest. Students should contact Professor Gross for more information about enrolling in this externship. Four credit hours.

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Law 502-535 In-House Clinical Programs. The In-House Programs of the Law Offices constitute one of the largest In-House clinical programs in the United States. In seven of the In-House Programs -- the Employment Discrimination/Civil Rights Litigation with some General Practice Clinic, the Criminal Defense Litigation Clinic, the Health and Disability Law Clinic, the Mediation and Other ADR Procedures Clinic, the Low Income Taxpayers Clinic, the Immigration Law Clinic, and the Family Law Clinic -- students are given the option of enrolling for three or four credits. Students who enroll for four credits put in a minimum of sixteen hours per week and students who enroll for three credits put in a minimum of twelve hours per week during the fourteen-week semester.
(revised 4/09)

Each of the In-House clinical programs provides classroom as well as field-work instruction to the students enrolled in that program as part of their weekly hourly requirement. With permission, students may enroll for a second semester in each of the In-House programs, with the exception of the Mediation and Other ADR Procedures Clinic. A unique feature of Employment Discrimination/Civil Rights Litigation with some General Practice Clinic, the Criminal Defense Litigation Clinic, the Health and Disability Law Clinic, the Immigration Law Clinic, and the Family Law Clinic is their fee-generating practice, which enables their student interns to receive their clinical experience in non-poverty as well as poverty cases and to have the opportunity to work in a realistic practice environment.

Students who intern in the Employment Discrimination/Civil Rights Litigation with some General Practice Clinic work on employment discrimination disputes and civil rights cases in the federal and state courts and at administrative agencies; the work also includes some general civil practice.

Students who intern in the Criminal Defense Litigation Clinic work on criminal defense matters in the trial and appellate courts in both the federal and state legal systems. The program represents clients accused of felonies and misdemeanors of all types.

Students who intern in the Health and Disability Law Clinic have an opportunity to work on Social Security disability cases, which generally involves proving at the administrative hearing level or beyond the medical disability of individuals in order to establish their eligibility for federal benefit programs such as Social Security Disability Insurance Benefits, Supplemental Security Income, Medicare and Medicaid. Students will also work on other civil litigation matters which generally involve health, disability or discrimination issues.

Students who intern in the Immigration Law Clinic work on cases in all areas of immigration law, including professionals, aliens of extraordinary ability in the sciences, arts and business, individuals seeking immigration benefits for family members, asylees and individuals threatened with removal from the United States by the government.

Students who intern in the Mediation and Other ADR Procedures Clinic engage in training and practice in mediation, arbitration, and other ADR techniques. They become certified as mediators and conduct a number of mediations over the course of the semester. Typical cases include juvenile court cases, criminal misdemeanor cases, employment discrimination cases, landlord-tenant disputes, and small claims court disputes. They also assist the clinical professors in arbitrating cases and drafting arbitration opinions.

Students who intern in the Low Income Taxpayers Clinic provide free assistance to impoverished clients in connection with a wide variety of federal tax disputes. Students have primary responsibility for advising and representing taxpayers who are battling the Internal Revenue Service and in the midst of ongoing civil examinations, administrative appeals, and enforced collection actions. Students also work closely with the supervising professor to prepare and try cases before the U.S. Tax Court and the U.S. District Court. Typical issues include proving entitlement to the Earned Income Tax Credit, establishing status as an Innocent Spouse, substantiating business or personal deductions claimed on tax returns, seeking relief from various civil penalties, and stopping the IRS from seizing a client's wages or other assets.

Students who intern in the Family Law Clinic work on cases dealing with legal separation, divorce, and child custody.

Pretrial Litigation for LADR Students Only is open only to students who are in the Litigation and Alternative Dispute Resolution (LADR) Certificate Program. A primary goal of the course is to teach both the mechanics and the theory of Pretrial Litigation, which is the activity in which civil litigators are engaged for the vast majority of their lawyering careers. The course also has as its goal to educate practitioners who will have the capability to solve professional problems within the indeterminate, real world of the practice of law. Students will be introduced to the process of developing professional judgment and making them reflective practitioners who will have the skills, abilities, and training to attain success and the highest degree of competence in their professional lives. In this course students will meet with their "simulated" client and interview him/her. Students will conduct both a legal and factual investigation, which will include research into the law and the interviewing of potential witnesses. Students will take part in preparing and filing pleadings, a discovery plan, written interrogatories, requests for production of documents, requests to admit facts, and any discovery-related motions that they deem necessary to fully prepare their client's case. Students will also participate in a simulated deposition. Students will then prepare and argue a motion for summary judgment. After the defendant's motion for summary judgment is denied, students will conduct a counseling session with their client in preparation for a simulated negotiation session with opposing counsel. Finally, the students will take part in the preparation and filing of a Joint Pretrial Order, including a trial brief. The course will end on the eve of trial with a pre-trial conference with the judge. The complaint or answer, written discovery requests, and brief in support of or in opposition to summary judgment, will take the place of an advanced legal writing course.

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Law 590 Intellectual Property Externship. The Intellectual Property Externship Program enables third-year students enrolled in the Intellectual Property Certificate Program to receive academic credit (without pay) for working 16 hours a week in an approved legal placement under the supervision of a designated attorney. The program is unique in that it enables students to gain practical experience and develop their legal skills while at the same time making themselves more marketable to prospective employers. The externship consists primarily of a fieldwork experience under a supervising lawyer, supplemented by individual meetings between the extern and Professor Gross throughout the semester. For more information about available externship opportunities, contact Professor Vivien Gross (vgross@kentlaw.edu). Four credit hours.
(added 11/03)

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Law 249 Intellectual Property Litigation. As intellectual property has become critical to the success of many businesses, intellectual property disputes have become more frequent and more significant. This class combines doctrinal intellectual property law with a practical, skills-oriented approach to litigation practice. Specifically, it will explore the life cycle of an intellectual property dispute, including pre-suit strategy, jurisdiction and forum selection, pleadings, fact and expert discovery, summary judgment and other pretrial motions, trial, damages, injunctive relief, and appeal. We will use case law, cutting-edge intellectual property scholarship, and a case study of a current intellectual property dispute as vehicles to explore these issues. Prerequisites: You must have completed, or be taking concurrently, at least two of the following courses: Copyright Law, Trademarks & Unfair Competition, Patent Law, Patent Litigation, Law of Trade Secrets, I.P. in the High Tech Era, or Practice Before the Federal Circuit. Recommended but not required: Federal Courts and Remedies. Three credit hours.
(relocated 11/04 to Litigation and Practice Skills section; revised 11/09)

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Law 540 Intensive Intellectual Property Trial Advocacy. The purpose of this intensive trial advocacy course is twofold. Exercises in this course are designed to introduce the students to the basic skills of trial advocacy in a primarily "learned by doing" format. Secondly, the course will expose the student to a variety of issues in the context of intellectual property cases. The course will necessarily include substantive intellectual property law as it pertains to the assigned a cases. The case files used in the course have been developed from actual intellectual property cases. In some case files, the actual legal memoranda discussing the substantive law issues presented in those cases have been included for the students benefit. Each student will be required to provide one juror for the final trial in which he or she is the trial attorney. Each student will be graded on the basis of daily performance throughout the course, a preliminary injunction hearing, and the final trial. You will be graded on objective performance; and upon your performance improvement during the course. Students must attend each class session from the class session start to the class session finish, and must be prepared to perform the exercises listed in the syllabus. Students will be expected to both conduct the exercise as counsel and to play the role of witness when called upon to do so. Prerequisite: Evidence and two of the following: Patent Law, Trademarks & Unfair Competition, Copyright Law, Law of Trade Secrets. Pass/fail not available. Students who have taken Trial Advocacy 1 (including the intensive version of the class) are not eligible to take this course. See the Schedule of Classes for scheduling and other information. Three credit hours.
(added 11/07)

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Law 541 Intensive Trial Advocacy 1. This is an intensive one-week version of Trial Advocacy 1 (see separate description). The course is offered every August prior to the start of the Fall semester and every January prior to the start of the Spring semester. Students who take Intensive Trial Advocacy are required to take Trial Advocacy 2 in the semester immediately following completion of the Intensive course. Three credit hours.

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Law 560 International Law Moot Court. Preparation of an appellate brief for the Jessup International Moot Court Competition. Students must have taken, or be taking concurrently, the course in International Law. One credit hour.

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Law 519 International Rule of Law Externship. The Rule of Law Externship Program seeks to develop externships in emerging democracies such as Bosnia, Poland and Macedonia. Students spend some time prior to the externship familiarizing themselves with the relevant law of the country in which they will extern and they then spend two or three weeks in the country in which the externship placement is situated performing their assigned tasks. Students receive two externship credits, graded on a pass/fail basis. After they return to Chicago-Kent, students write a scholarly paper on a topic related to their externship for which they receive graded credit.

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Law 573 Judicial Externship. Judicial Externship is a four-hour pass/fail program open to second- and third-year students only, and is offered Fall, Spring, and Summer terms. The prestigious fieldwork component of the program provides externs with the opportunity to work with a federal judge and/or the judge's law clerks by researching law, writing memoranda and drafting opinions. The judicial extern becomes involved in particular legal problems and is able, through research and writing, to contribute to the resolution of those problems. Depending upon the judge, an extern may have the opportunity to observe the day-to-day routine of the courtroom and to discuss with the judge or the judge's law clerk those legal problems which judges confront in their courtroom. There is an accompanying discussion component that focuses on various aspects of federal judicial decision-making and, where appropriate, how those aspects affect the extern's work product. Selection of an extern is made by the individual judge through the application process which the law school oversees. To apply, students must meet the minimum G.P.A. requirement, which is approximately the top 22% in the second- and third-year classes, respectively. The exact G.P.A.'s will vary from year to year. For more information, contact Professor Vivien Gross (vgross@kentlaw.edu). Four credit hours.
(revised 11/03)

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Law 421 Labor/Employment Law Externship. The Labor/Employment Law Externship Program is offered through the Labor/Employment Law Certificate Program. The externship is available to students enrolled in the Labor/Employment Law Certificate Program during their last year of law school and is used to satisfy the experiential learning requirement of the certificate program. The educational objective of the externship is to provide the student externs with a well-supervised lawyering experience in labor or employment law by enabling each of them to extern with a law school-approved placement. Student externs are placed with a law firm, corporation, union or governmental agency. Externs spend approximately fifteen hours per week during the fourteen-week semester at their designated placements and attend periodic meetings with the faculty supervisor. Students in the program enroll in a three-credit field-work course graded on a pass/low pass/fail basis and a one-credit graded classroom course.

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Law 550 Law Review. Preparation of articles and comments upon current legal and social problems for inclusion in the Chicago-Kent Law Review. Open only to members of the Board of Editors and the staff of the Law Review. One credit hour per semester. (Maximum credit not to exceed five credit hours.)

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Law 559 Legal Externship. The Legal Externship Program is a four-hour pass/fail program that enables a law student to receive academic credit (without pay) for working 16 hours a week in an approved legal placement under the supervision of a designated attorney. The program is unique in that it enables students to gain practical experience and develop their legal skills while at the same time making themselves more marketable to prospective employers. Legal Externship consists primarily of a fieldwork experience under a supervising lawyer, supplemented by individual meetings between the extern and his/her faculty advisor throughout the semester. Externs interested in civil law may select to work in corporations, firms or government agencies, specializing in such diverse legal areas as immigration, tax, commodities, securities, health care, medical malpractice, or general corporate law. Externs in criminal law may choose to work with the States Attorney's Office, Public Defender's Office, or the U.S. Attorney's Office. Some externships offer the opportunity to obtain a 711 license and appear in court. For permission to do an externship or for more information about available externship opportunities, please contact Professor Vivien Gross (vgross@kentlaw.edu). Four credit hours.
(revised 11/03)

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Law 254 Litigation Technology. This course will teach law students interested in becoming trial lawyers how to integrate technology into their trial presentations. Students will learn how to apply principles of persuasion to the creation of courtroom visuals which they will then present in the trial advocacy portion of the course. The course will use hypothetical problems and cases to allow students to develop presentations that persuade and will include computer lab sections, some lecture, and student participation with instructor critique. Students will try civil cases and criminal cases. Students should own their own laptop computers and be prepared to bring them to class every week. The machine should be Windows-compatible. The class may run longer than three hours when students try their mock trials. Maximum class size is 16 students. Prerequisite: one semester of Trial Advocacy. Three credit hours.
(revised 11/03)

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Law 420 Mediation. An exploration of the mediation process as an alternative to traditional litigation. The course explores the role of the mediator as well as the role of attorneys in the mediation process. This is a simulation course in which students participate in several mediations. Two credit hours.

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Law 551 Moot Court Honor Society. Instruction in, and preparation of, appellate briefs and appellate oral arguments in intramural and national competition. One credit hour per semester. (Maximum credit not to exceed five credit hours.)

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Law 429 Negotiations. This course examines the negotiation process engaged in by lawyers. It is intended to increase a student's understanding of that process and to develop his/her skills as a negotiator. Experts in various fields discuss negotiations as they apply in those areas of the law. Students engage in mock negotiations in a variety of contexts, such as divorce, real estate, contracts, commercial law, labor law, and criminal law. Not all instructors cover each of these areas of substantive law, and different instructors emphasize different areas of substantive law. Two credit hours.

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Law 595 Refugee & Asylum Law Externship. This is a Spring semester practical training course offered by Hearland Alliance's Midwest Immigration & Human Rights Center (MIHRC) for law students interested in immigration law. The course is offered through Chicago-Kent's Legal Externship Program. In addition to the Law School externship meetings, students must attend weekly evening classes at MIHRC's downtown office, and are assiged an asylum case to prepare for presentation before the Chicago Asylum Office. The class schedule will be arranged once students are selected. Students will prepare cases of asylum applicants previoulsy interviewed and accepted by MIHRC. Each student will interview and assist in the preparation of their client's affidavit. After researching domestic and international law, as well as country conditions pertinent to the claim, students will assemble an asylum application with supplemental documentatin and will draft a legal memorandum in support of their client's application. At the end of the program, students will file clients' applications with the U.S. Department of Homeland Security and accompany their clients to their interviews at the Chicago Asylum Office. Prior immigration law experience is not required. Fluency in a second language is preferred, although not a requirement. Please contact Professor Vivien Gross for more information about applying to this program.
(revised 11/05)

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Law 555 Trial Advocacy 1. An introduction to litigation taught by leading trial attorneys and judges. The course uses hypothetical cases to teach the student trial preparation, strategy, and conduct in a courtroom setting. Although the instructor will demonstrate from time to time, the primary teaching method is student participation with instructor critique. Classes often run longer than three hours. Three credit hours.

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Law 558 Trial Advocacy 2. An in-depth study and performance of litigation skills in certain trial settings. The course is a continuation of Trial Advocacy 1. Classes often run longer than three hours. Three credit hours.

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SEMINARS

(Except where indicated, all seminars are two credit hours.)

Following is a list of seminars that have been offered recently, although not necessarily every year. Each year new seminars are introduced and old ones retired. Seminar study provides students with an opportunity to work closely with members of the faculty in their areas of expertise. Some elective courses are also offered for seminar credit; where this is the case, it is noted in the registration materials for the particular semester. Enrollment in all seminars is limited to fifteen students.

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Law 671 Access to Justice and Technology. Studies repeatedly demonstrate that 80% of the legal needs of the poor in the United States remain unmet, despite existing federal, state, and volunteer programs that provide some civil legal services to low income people. The seminar will explore the parallel problems of lack of access to legal services by low income people, on the one hand, and the flood of underrepresented litigants appearing before state and federal courts, on the other. Barriers to access to the justice system will be examined and various solutions explored with special emphasis on the potential of the Internet and related technologies to improve access to justice. The seminar will be both experiential and experimental. You will visit courts and legal services offices to observe our current justice system in action. You will also be encouraged to write papers that explore innovative approaches to increasing access to justice.
(added 12/02; revised 4/04)

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Law 689 Advanced Evidence. This seminar will focus on the three areas of evidence that matter most in the trial and appeal of lawsuits, civil and criminal. These areas are: character, hearsay and confrontation, and expert witnesses. Class discussion will track the most recent developments in these areas, focusing on ways to successfully object and respond to objections at the trial court level. Through the use of fact situations from reported decisions, we will develop a realistic and effective approach to evidence law, while exploring its strengths and weaknesses.

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Law 622 Advanced Legislative Advocacy. This course will provide an opportunity for students to develop and implement a complete Policy Action Plan. This advanced course will focus on a thorough understanding of researching, understanding, and drafting legislation, as well as administrative rules and regulations. Students will select a topic to work on for the semester, which may be a continuation of the topic they addressed in the basic Legislative Advocacy course. Students will be expected to prepare a comprehensive policy review of their topic, with an in-depth analysis of the existing laws and regulations pertaining to the topic. Students will also be expected to develop a sophisticated research base for their topic, which will include drafting expert testimony on behalf of a researcher. Students will also complete research including legislative history, relevant policy makers, and agency officials and administrators. Prerequisite: Legislative Advocacy. Two credit hours.
(added 4/07; cross-listed as seminar 4/10)

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Law 662 Advanced Tax Transactions. This seminar examines the tax and business planning aspects of mergers and acquisitions, including taxable and nontaxable transfers of businesses and real estate. Transactions covered include installment sales, earn-outs, options, technology transfers, reverse mergers and like-kind exchanges. Particular attention will be given to planning whether to use asset sales or stock sales, structuring financing for acquisitions and techniques for compensating investors. The seminar will also explore the taxation of partnerships, S corporations and limited liability companies and their special application to corporate and real estate acquisitions.

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Law 665 Advanced Topics in Constitutional Law. This seminar will focus on the role that is properly played by non-judicial institutions (primarily Congress and the President) in determining what the Constitution requires.  For example:  May the President elect not to enforce federal law because he thinks doing so would be unconstitutional?  When Congress and the President formulate their positions as to what the Constitution means, are they limited to using the same reasoning that courts use, or may they take account of additional considerations? Our study will have the added benefit of clarifying the role that courts play in interpreting the Constitution.  It also will shed light on what the Constitution “is,” what role the Constitution plays in our democratic liberal regime, and how the Constitution changes over time.  We will approach these issues by reading historical materials, constitutional jurisprudence, and several case studies.  Possible topics include (1) national security issues, primarily the relation between the President's commander-in-chief powers and Congress' assorted war-making powers; (2) the constitutionality of secession; (3) the impeachment process; (4) executive privilege; and (5) equal protection.  Students will be expected to write a paper.  Prerequisite: Constitutional Law.
(added 4/08; revised 11/09)

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Law 676 Animal Law. Human beings share the planet with 4,500 other mammal species as well as 15,000 fish, 10,000 bird and 9,000 reptile species. Consequently, every society must define the relationship between these human and non-human inhabitants. Today, many people question the adequacy of laws arising from a tradition of human sovereignty and the piecemeal protection of animals. Increasingly, legislatures, government agencies and courts are being asked to define the rights of animals and, in turn, to redefine the relationship between humans and non-humans. This seminar will explore the evolving legal concept of animal rights and its application to different aspects of the relationship between humans and non-humans, including the human use of animals for research, food, commodities, sport, entertainment, prey and companionship. The seminar will include a review of federal and state civil and criminal statutes, case law, treaties and legal concepts derived from tort, contract and property law. The course will also explore how laws that are designed to preserve endangered animal species may be a model for a broad redefinition of the human-animal relationship.
(added 11/07)

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Law 626 Antitrust and Intellectual Property. This seminar explores the overlap and apparent tension between Intellectual Property and Antitrust laws. We will discuss how substantive Antitrust law constrains owners of intellectual property. The seminar will not discuss how to obtain a patent or copyright (which is taught in substantive Intellectual Property courses); rather, we will determine when the acquisition, licensing, and/or enforcement of Intellectual Property rights violate Antitrust laws. The seminar is designed and intended for: (1) students of Intellectual Property law who want to understand how Antitrust law limits the exercise of IP rights, and/or (2) students who have taken Antitrust and want to study how this body of law operates in the context of Intellectual Property rights.
(added 11/03)

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Law 611 Baseball, Law, and American Society. This seminar explores the role of law in the development of professional baseball in the United States. We will examine the relationship between law and the national pastime from the birth of baseball as a business in the late nineteenth century through the enterprise of Major League Baseball today. Topics include: struggles over enforcement of player contracts; baseball’s exemption from federal antitrust law; civil rights; player unionization; the fall of the reserve system; gambling; performance enhancing drugs; stadium construction and urban redevelopment policy.
(added 11/08)

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Law 626 Civil Rights History: From the Civil War to the Civil Rights Movement. This seminar examines the development of civil rights law in the United States since the end of the Civil War. Topics include: the passage and ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments; the retreat from Reconstruction in the courts and in society; the role of law in creating, maintaining, and challenging racial oppression during the Jim Crow era; and the origins, achievements, and limitations of the modern civil
rights movement. We will give particular attention to the changing
historical context in which courts and legislatures create civil rights law,
the role of social movements in the formation of civil rights policy, and
the power of law to reshape entrenched social practices.
(added 11/07)

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Law 629 Class Actions. This seminar offers a behind-the-scenes look at major class action litigation, covering how some of the nation's largest cases are prosecuted, defended, and ultimately settled. Topics include how class actions are generated and formed, litigation, legislative and media strategy, how class actions can potentially benefit consumers and companies, attorney's fees, and emerging issues. 
(added 4/10)

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Law 627 Climate Change. Our many and varied ways of using energy are the principal sources of the greenhouse gases that are affecting the world's climate. The seminar will examine the impact of energy on climate, and the impact of climate on energy; particularly the growing number of state laws and congressional proposals to mitigate climate change by changing the legal rules regarding the use of energy. (This course was formerly entitled "Energy and Climate.")
(added 4/07; title changed 4/08)

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Law 652 Comparative Tort Law. Comparative law is important for at least two reasons. First, law and legal disputes are increasingly becoming more global, so that knowledge of other legal systems with different procedural and doctrinal structures, especially those based on the European civil law tradition rather than the Anglo-American common law tradition, as well as law promulgated by international organizations such as the European Court of Human Rights, is becoming increasingly important to everyday legal practice. Second, studying how other legal systems deal with various substantive and procedural issues can provide useful insights for how those issues might be better dealt with in our legal system. The premise of this course is that the benefits of studying comparative law can be best obtained by focusing on a specific area of law, which however encompasses issues and doctrines that are fundamental to all of law. Tort law is such an area.
(added 11/06)

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Law 903 Constitutional History. This course explores the history of the Constitution of the United States from the late eighteenth century through today. We will study the ways in which the Constitution has developed—its framing and ratification, the inclusion of the Bill of Rights and later amendments, subsequent judicial interpretations—in response to particular social and political circumstances. Through an examination of major episodes from American history, students will be exposed to central themes of constitutional development: the concept of a written constitution, judicial review, the balance of power between the central government and the states, the problem of slavery and racial equality, free speech, gender equality, and the role of law in shaping cultural norms. Although much of the course is dedicated to analyzing the ways in which the courts, particularly the United States Supreme Court, have interpreted and applied the Constitution, we will also give close attention to the efforts of individuals and groups outside the judiciary to shape the Constitution and define its role in American society. Three credit hours.
(added 11/10)

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Law 644 Constitutional Law and Religion. This seminar focuses on the role that religion plays, and should play, in American public and private life under the Constitution. Emphasis will be on the Establishment and Free Exercise Clauses of the First Amendment, with a fair does of the history necessary to understand this controversial subject. (This course was formerly entitled "Religion and the Constitution.")
(added 4/04; title changed 4/10)

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Law 648 Constitutional Torts/Section 1983. This seminar deals with the important subject of constitutional torts, specifically 42 U.S.C. ' 1983 and Bivens actions, whereby state, local and federal officials, as well as local governments, may be held liable in damages when they violate peoples' constitutional rights. Constitutional torts is a subject that is fascinating at both a theoretical and practical level. It raises deep issues of federalism and justice as well as real-world problems of how to make governments accountable to their citizens without undermining their effectiveness. Thousands of constitutional torts cases are filed annually, and they generate considerable controversy, e.g., Rodney King filed a section 1983 damages action against Los Angeles and certain of its police officers. Those who should take this seminar include persons who expect to do federal litigation of any kind, as well as any students who hope to clerk for federal or state judges or work for state and local governments. Not only does the seminar deal with constitutional law but it also addresses federal courts issues, damages and injunctive relief and attorney's fees, among other important subjects.

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Law 613 Copyright Law in the 21st Century. This seminar will examine some of the major controversies and issues in copyright law, including (i) updating the Copyright Act for the digital world, (ii) the growth of user-generated content and remix culture, (iii) the role of intermediaries such as YouTube and Google, as in the Google Book Search settlement, (iv) how music file-sharing should be handled, and (v) whether fair use needs to be changed or clarified in some way so that the public can know in advance what constitutes a fair use. To enroll in this seminar, students must have completed Copyright Law, or be taking it concurrently; or receive the permission of the professor.
(revised 4/09)

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Law 601 Emerging Technologies. Law and the legal system anticipate and also respond to evolutions in technology in ways that may enhance or inhibit development. This seminar examines these changes from an historical perspective, using the evolution of telecommunications technologies and regulations as a case study.  It then examines current technological developments in sectors such as green energy, transportation, genetic engineering, and social networks in the context of disciplines from the lawyer's toolkit: intellectual property, business organization, contractual relationships, constitutional rights of individuals, and theories of liability.  This seminar will emphasize how future lawyers can and should anticipate or envision future legal impacts--including legislation, litigation, and corporate governance--of emerging technologies.  Each student will select a particular technology, describe what makes it emerging, and explain its anticipated legal impacts in a class presentation and seminar paper.
(added 11/08)

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Law 603 Entertainment Law. This seminar will be organized around student papers exploring intelectual-property, contract, agency, business-organizations, and law-and-economics issues in the entertainment industries, with an emphasis on popular music, movies, television, theatrical works, and video games.
(added 4/09)

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Law 607 European Copyright Law. This seminar, which will be offered in intensive format, covers European approaches to digital rights management, the exploitation of works in computer networks (P2P, databases, software, etc.), the scope of fair use, liability for infringements in the digital environment, and the enforcement of rights. It considers not just the present state of regulation but looks at future challenges as well. Available as a course or seminar. The class will meet from Monday, August 20 through Saturday, August 25, 2007. Two credit hours.
(added 4/07)

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Law 615 First Amendment Theory. This seminar will explore the history and theory of the First Amendment freedom of speech and press. After examining some of the leading theoriesBwhich view free expression as essential to individual self-fulfillment, democratic self-government, and the search of truthBwe will debate how the First Amendment should apply to a variety of contemporary issues, including flagburning, pornography, and hate speech.

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Law 681 Graduate Seminar in International Intellectual Property Law. This is a year-long mandatory seminar for all students enrolled in the LL.M. Program in International Intellectual Property Law. It is open only to those students. The seminar will introduce students to all the relevant institutions of international intellectual property law (including most notably the World Trade Organization and the World Intellectual Property Organization). It will also cover the principal scholarly and policy debates that are presently occurring regarding international intellectual property law. As the year proceeds, the seminar will be structured around the masters thesis being drafted by each student for his or her LLM in International Intellectual Property Law. Two credit hours (Fall); one credit hour (Spring).
(added 5/03)

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Law 637 Harassment in Employment Law. This seminar examines the development of, and still-open questions in, one of the newest and most complex areas of employment law. Students will write papers on one of a broad range of harassment-related topics.
(added 7/08)

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Law 619 International and Comparative Antitrust. During the last few years, the role of law in protecting economic competition from restraints (“antitrust law” or “competition law”) has become an increasingly important factor in international business and in legal practice relating to international business. It is likely to become even more important as the globalization of economic activity advances. This course is designed to introduce students to this area of law and to the basic tools they will need to understand and provide legal services in it. We will examine U.S. antitrust law as it relates to transactional conduct. We will then look at antitrust law in Europe and, in a superficial way, other parts of the world. The final section of the course will deal with recent developments in international antitrust cooperation and with moves toward the development of a transnational antitrust regime.
(added 5/03)

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Law 675 International Criminal Law. This seminar explores three principal areas: (1) international procedural mechanisms for enforcing national criminal laws (such as the extradition process and Mutual Legal Assistance Treaties); (2) substantive international criminal laws (such as war crimes, crimes against peace, and crimes against humanity); and (3) international criminal law issues that arise in doing business abroad (such as the Foreign Corrupt Practices Act). Particular attention will be given to international criminal law issues arising out of the Bosnian war (including the UN's establishing a war crimes tribunal). An introductory course in international law is strongly recommended as a prerequisite.

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Law 657 International Environmental Law. This seminar examines the emerging legal regime that governs transboundary and global environmental degradation. Issues include customary restraints on state actions which injure another state or the global commons, international treaty regimes for ocean pollution, biodiversity conservation and global climate change mitigation, and the link between trade and environmental protection. The seminar also examines the ethical, economic and governance issues raised by international environmental protection.
(added 4/09)

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Law 686 International Human Rights. The seminar involves both a definition of human rights as well as enforcement procedures for the implementation of human rights. The historical and philosophical bases of human rights are examined starting with the works of various thinkers from the diverse schools, particularly natural law, positivism, Marxism and the sociological school. The Universal Declaration of Human Rights and the later international covenants are looked at in terms of the influences of the various schools. The seminar addresses the question of whether there is agreement as to fundamental human rights. Recent developments and tensions in the field of human rights particularly since the increased membership of countries from the "third world" and socialist bloc countries are investigated. This is highlighted by focusing on the later two covenants of the United Nations, particularly the Covenant on Social, Economic and Cultural Rights, which enlarges the scope of human rights to include welfare, cultural, and economic rights. Finally, the seminar focuses on the contribution of international and non-governmental organizations in the protection and implementation of human rights.

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Law 625 International Humanitarian Law of Armed Conflict. International Humanitarian Law (IHL), also known as the Law of Armed Conflict (LOAC) or simply the Laws of War (LOW), is a set of rules intended to limit the negative effects of war. The principle thrust of the law is to limit the methods of warfare (e.g., by banning certain weapons) and to protect people not engaged in combat, such as POWs, the sick and wounded, and civilians. This class will focus on the most important sources of IHL, which include the 1949 Geneva Conventions and their two protocols, the 1907 Hague Regulations, and various other rules contributing to the customary international law of armed conflict. Most of IHL applies only to international armed conflict. The class will also consider the special challenges raised by the application and adaptation of these rules to internal armed conflict and to the so-called “war on terror.” Finally, the class will briefly consider the use of international tribunals as an enforcement mechanism. The course may be taken either as a seminar, requiring a seminar paper, or as a course with an exam.
(added 11/09)

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Law 672 International Labor and Employment Law. This seminar will focus on how and why international labor and employment law have developed as a response to globalization, exploring intellectual foundations and surveying the latest developments in the field. The aim is to become conversant with key policy issues, and with the architecture of the main regimes of international labor and employment law, preparing students to provide well-rounded advice, arguments, and opinions on a set of issues at the center of contemporary debates over international economic integration. Topics will include the mutilateral system of worker rights (the International Labor Organization and international human rights conventions), the linkages between labor standards and international trade law, regional systems of worker rights (the European Union, the NAFTA), unilateral application of worker rights within the international system, litigating international worker rights in U.S. courts, and corporate social responsibility and private sector codes of conduct.
(added 11/04)

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Law 687 International Patent Law. The management of large international patent portfolios (comprising patent applications filed in several jurisdictions), and an understanding of law and treaties affecting those portfolios, is fundamental to international patent practice. We will discuss the basics of filing and prosecuting patents under the Patent Cooperation Treaty (PCT), including issues that may arise when prosecuting a US application under the PCT. We will also consider other multinational patent treaties commonly used in foreign patent application filings that affect the management of international patent portfolios and US patents. We will take a comparative look at several aspects of U.S. and foreign patent laws, and will consider current controversies surrounding patents in the international arena -- e.g., regarding access to medicines and the patentability of business methods and other controversial subject matter. Patent Law is a prerequisite. This requirement can be waived only with the permission of the instructor.
(revised 11/08)

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Law 630 Intimate Partner Violence. This seminar will explore issues of domestic violence and stalking and will include an overview of state and federal laws, best practices in the criminal justice field, lethality indicators, orders of protection, and the effects of domestic violence on the workplace. The seminar will offer students an opportunity to understand the complexity of the prosecution of domestic violence cases, and an understanding of how pervasive this epidemic is in our society. Topics include: the study of the profile of domestic violence victims; society's response to this issue; criminal justice response; philosophies of arrest and prosecution of domestic violence; threat assessment and management; orders of protection and employment law and domestic violence.
(added 4/09)

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Law 668 Investment Funds. This seminar examines the regulatory, economic, and political issues surrounding the use of pooled investment vehicles, particularly hedge funds, private equity funds, mutual funds, exchange-traded funds, and sovereign wealth funds. We will discuss the legal and business considerations that go into the formation of funds, paying close attention to the negotiations between investment advisers and the investors in their funds. Relatedly, we will examine the investment strategies of different investment funds, through leveraged buyouts, equity investments, and more sophisticated trades in derivatives. We will develop a familiarity with the Investment Advisers Act and the Investment Company Act, which are the key legal regulations governing these funds, as well as with the most current scholarly debates in this field. Prerequisite: Business Organizations. Securities Regulation is not a prerequisite but will be helpful.
(added 4/08)

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Law 608 Jurisprudence. Many people submit to the law simply because they believe that the institutions administering it are just. But what if a law itself is unjust? The duty to obey law presupposes that laws are both consistent and just: because they sometime aren't, difficult cases arise in which appeals to a higher political morality become necessary if justice is to be served. But what is this higher political morality and what is its connection to the institutions we rely upon to do justice and protect our human rights as well as to the laws that are actually produced? Is this higher political morality the morality of our society or something broader? And, if it is something broader, how do we discover what it is? In this course, we will attempt to answer these and other questions by considering the relationship between legal and political philosophy, showing how the former is incomplete without the latter. Taking the problem of how to solve difficult cases as our point of departure, we will look at the inherent incompleteness of conventional theories of law with the idea of developing a meta-theory that would enable judges to decide difficult cases by drawing upon the best available theory of politics appropriate to the case's level of abstraction. By so doing, it is hoped that we will be able to produce resolutions for some kinds of controversial cases and open doors to the way we should think about others. It is also hoped that the course will provide an avenue for a broad critique of the way legal and political institutions operate including the way law schools educate and judges actually decide cases.

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Law 677 Law and Literature. This seminar will explore issues related to Criminal Law and Justice by examining literature touching on those subjects.  In the process, we will also spend some time considering how various literary and rhetorical techniques influence a piece’s effect upon the reader or listener. We will review a variety of kinds of literature, possibly including novels, plays, short stories, poems, and screenplays (through viewing films).  We will also read some more traditional legal texts, such as cases, statutes, transcripts, and legal scholarship on related themes. Students will be expected to carefully read each week’s material before class and to demonstrate that reading through active participation in class discussion. Students’ grades will depend upon class participation and a significant writing project or projects to be determined.
(added 11/09)

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Law 628 Law, Economics and Justice. This course is a "capstone" course that will review basic doctrines covered in the first year courses (property, contracts, torts, criminal law, and procedure), and possibly other topics, with the purpose of exploring the extent to which those doctrines and areas of law can be explained, justified, criticized, or revised from the perspectives of economic efficiency and justice. Students who take the course should benefit from a more systematic analysis and review of the basic legal doctrines that form the foundation for most of the law, an understanding of basic (microeconomic) efficiency theory as applied to the law, a better understanding of the principles of justice and their application to various areas of the law, and an ability to recognize, employ and criticize efficiency and justice arguments in and outside the law. Three credit hours.
(added 11/06)

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Law 617 Law of Globalization. This seminar will explore the relationship between law and globalization, especially economic globalization. As markets become more global and as legal mechanisms are developed to respond to these changes, it becomes critically important for lawyers and policy-makers to grasp these developments. They are already of major importance in areas such as competition law, intellectual property law, environmental law and the like, and they are of growing importance in many other areas of law. They are likely to increase in importance in these importance in each of these areas. The seminar will seek to develop tools for effectively examining globalization effects in a variety of areas, depending, in large part, on areas of student interest.
(added 11/09)

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Law 678 Law of Nationbuilding. International intervention in Bosnia, Kosovo, East Timor, Afghanistan and Iraq have raised a number of questions about public international law, administrative law, and how best to create a legal framework for development of democratic institutions and market economies. Students will write papers on some aspect of law related to these nationbuilding challenges. The seminar will be integrated with the Nationbuilding IPRO, which will have students working on projects related to the political trusteeship in Kosovo, including promotion of tourism, resolution of legal issues related to privatization, compiling applicable law, especially pertaining to property and commercial transactions. (Note: IPROs are IIT Interprofessional Projects that draw students from various colleges and departments throughout the university.)
(added 12/03)

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Law 907 Law of Social Networks. This seminar will address the legal issues raised by Facebook, MySpace, Reddit, and other social networks. The seminar will cover the application of privacy law, criminal law, legal ethics, employment law, school law, First Amendment law, defamation law, evidence law, intellectual property law, cyberlaw, and other precedents to social networks. Facebook currently has half a billion members. If Facebook were a country, it would be the third largest nation in the world. The seminar will ask: If Facebook were a nation, what should be its Constitution?
(added 11/10)

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Law 670 Law, Policy and International Development. This seminar will explore legal strategies for promoting economic and political development in emerging economies. The first part of the course provides an overview of the theories underpinning development policy and is intended to establish the necessary foundation and vocabulary for the rest of the course. The second part delves into various legal strategies for development with a focus on the discourse of property rights, rule of law, economic and social rights, and judicial reform. In the third and final portion of the course, students will scrutinize specific law and development projects funded by multilateral institutions such as the World Bank to assess their effectiveness in increasing the well-being of indigent populations living in the developing world. Three credit hours.
(added 4/05)

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Law 906 Law and Human Behavior. This course will explore the implications of recent social science research on human behavior for law and legal decision-making. In the past few decades, new discoveries in psychology, cognitive science, neuroscience, and economics have challenged fundamental ideas about how people think and decide. We will consider their application to a variety of areas of the law including criminal and civil law and jury decision-making. Topics will include happiness and hedonic psychology, the role of emotion and reason in decision-making, creativity, risk assessment, and free will. Students in the seminar will write a substantial research paper. Students in the course will write a series of short (2-3 page) analysis papers.
(added 11/10)

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Law 646 Legal Rights of Children. This seminar examines the increasing state intervention in family decision-making with regard to children. Among the topics included are: neglect, child abuse, dependency, child custody problems resulting from the dissolution of marriage, the rights of putative fathers to custody of children, adoption of children, guardianships, and children's rights in the mental health commitment process.

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Law 688 Making Chicago: Law, Politics, and Urban Planning in the Second City. This seminar explores the ways in which law and public policy - local, state, and federal - have shaped Chicago from the city's nineteenth century beginnings through today. Drawing on the analytical tools of local government law and urban history, we will examine the social, economic, demographic, and political development of the Chicago metropolitan area. Topics include: urban economic development; crime, policing, and the justice system; community organization and activism; the regulation of land use; urban renewal policy; the rise and fall of public housing; the persistence of racial and ethnic divisions; the civil rights movement in Chicago; city-suburb relations and regional planning efforts; transportation; city schooling; gentrification and urban redevelopment; the historic preservation movement; and local environmental policy. Throughout the seminar, we will consider, in both historical and contemporary perspective, the role of the city in the American legal system and the costs and benefits of localized governmental power.

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Law 610 Military Law. This course involves a study of the Uniform Code of Military Justice (UCMJ). It considers the UCMJ's past, present, and future. The military courts-martial system is compared with its civilian criminal justice counterpart. The required materials are furnished (without charge).
(added 11/06)

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Law 680 National Security Law. This course addresses legal and policy issues associated with the U.S. government's national security activities and organizations, with a particular emphasis on legal issues regarding terrorism.  Among the topics we will cover are the rules governing the President’s use of military force, military detention, and targeted killing; military commissions and other vehicles for the prosecution of war crimes; the current debate regarding national security courts; the legal regulation of interrogation; and covert action and intelligence gathering. We will also discuss other current national security issues as they develop.
(added 11/09; revised 11/10)

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Law 633 Patent Litigation. Students will examine major issues of substantive law and strategy facing a lawyer involved with patent litigation. The class sessions will focus on the leading cases in emerging areas of patent law. Such areas include venue and transfer, protective orders, claim construction, infringement under the doctrine of equivalents, the scope of remedies available to a patent owner, and the role of a jury in deciding complex technological issues. The class will also address procedures for analyzing patent infringement disputes and for considering when, where and why to bring patent infringement lawsuits. Prerequisite: Patent Law. Three credit hours.
(revised 4/10; cross-listed as seminar 4/10)

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Law 660 Privacy in Employment Law. This seminar focuses on the emergence in employment law of matters affecting the privacy rights of the individual employee in the private sector. Topics addressed include drug and alcohol testing, defamation, the tort of invasion of privacy (and its various forms), confidentiality of employee communications, including e-mail, employer rights of search and seizure, and employee surveillance and monitoring. Legislative developments and case law in the area will be the subject of discussion in each class.

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Law 656 Public Sector Employees. This seminar will examine the constitutional, common law, and statutory issues arising in labor relations and collective bargaining between governmental units and public employees and their unions. Particular emphasis will be placed on the essential differences between labor relations and collective bargaining in government and that same process in the private sector. Seminar participants will be expected to write a major research paper on those differences, exploring whether they are substantial enough to warrant the adoption of private sector labor law concepts, and if so, to what extent.

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Law 643 Reproductive Technology. Technologies related to diminishing or enhancing fertility (such as contraception, in vitro fertilization, cloning, artificial insemination, and surrogate motherhood) raise issues that cut across a variety of legal domains. This seminar will explore the constitutional, tort, and family law implications of the technologies and attempt to develop appropriate policies for their use.

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Law 621 Seventh Circuit Review: Honors Seminar. This course is an in-depth investigation of the current term opinions of the United States Court of Appeals for the Seventh Circuit and their impact on contemporary jurisprudence. As part of the class, students will publish an on-line journal, tentatively titled the Seventh Circuit Review of Published Opinions. The Seventh Circuit Review will present and comment on current term published opinions in such areas of the law as civil and criminal procedure, administrative law, alternative dispute resolution, employment law, constitutional law, criminal law, tort, and contract. Upon successful completion of the course, students will receive both a course grade and publication credit as a member of the staff of the Review. During the semester, students will identify cases to be included in the Review, prepare initial drafts for discussion of the assigned cases based on in-depth analysis of the cases and background research, edit case discussions, prepare final publishable drafts of case discussions, integrate individual case discussions into the online journal, and "defend" analysis at a semester-end roundtable.
This is an honors seminar. To enroll, students must meet one of the following criteria: (1) cumulative GPA in previous legal writing courses of 3.5 and class rank at the time of registration within top 50% of class, (2) recommendation of Legal Writing 1and 2 professor and/or Legal Writing 4 professor, (3) Law Review membership, (4) Moot Court Honor Society membership, or (5) approval of course instructor. If more than 15 qualified students register for the course, enrollment will be determined by random drawing among the qualified students.
(added 11/05)

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Law 651 Sexual Orientation and the Law. Despite important recent changes at the local, state, and national levels, and in some foreign countries and the European Union, to protect gay men, lesbians, bisexuals, and transgendered persons (LGBT) from discrimination and to recognize same-sex relationships, society’s attitude toward homosexuality and transgendered issues continues to be ambivalent. This is especially true in respect to marriage and child rearing, as we see in the current debates over same-sex marriage, but it is also found in the attitudes of states that fail to protect against public and private employment discrimination, and in the federal government’s “Don’t Ask/Don’t Tell” policy to keep openly gay persons from serving in the military. This course/seminar will explore the possibility of finding a legal, philosophical or political framework for approaching LGBT issues by critically looking at various conceptions of homosexuality and society’s purported justifications for affecting this behavior, against its broader concerns for guaranteeing social liberty and human equality. It will then apply this understanding to the interaction between gays and the criminal justice system; discrimination in public employment (including military service) and private employment; first amendment issues posed by gay teachers in public schools and universities; the legal problems faced in establishing same-sex relationships (especially
marriage) in Massachusetts and elsewhere; and the legal problems gay people confront in matters pertaining to child custody and visitation rights. Central to the course will be locating possible interpretations for the Supreme Court’s 2003 interpretation in Lawrence v. Texas, and its 1996 decision in Romer v. Texas. This particular area of the law is really several areas as they relate to gays, lesbians, bisexuals and transgendered people. LGBT have been a kind of exception to the way the law traditionally operates, and this exception cannot usually be made sense of in terms of traditional legal thinking. For this reason the course will engage a certain degree of theoretical abstraction to undersand, clarify and hopefuly improve the law in these areas.
(revised 11/07)

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Law 649 Tax Policy. This course will cover the following topics: the legislative process in enacting tax legislation; the intended and unintended consequences of legislation (e.g., the alternative minimum tax and the estate tax); comparisons of the U.S. tax system with other countries, addressing issues of fairness and compliance; how tax policy has been used, and will be used in the future, to address economic and social issues (global warming, energy conservation, subprime mortage, poverty); and how the judicial system affects tax policy.
(revised 4/08)

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Law 650 The Corporation and the Constitution. This course will investigate the origin in law of the corporate form and explore the challenges presented by the modern corporation, both from the standpoint of its legal structure as a business organization formed by law, and the rights and privileges afforded corporations under case law that interprets the corporation as a jural “person.”  Readings will be considered from colonial charters to the recent U.S. Supreme Court decision in Citizens United v. FEC (2010). There will be special emphasis on the contracts and commerce clauses of the Constitution, as well as the 14th Amendment. This course is not so much concerned with corporate responsibility as it is with corporate governance and accountability. We will explore the concept of limited liability, trace the evolution of legal personhood, examine the original public purpose requirement of the corporate entity as contemplated in law, and consider the role of public law in the world of the self-regulating market.
(added 4/09; revised 4/10)

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Law 624 Topics in Comparative Constitutional Law. This course examines issues of constitutional design and adjudication in comparative perspective. We will compare various constitutional systems, focusing on the role and structure of constitutional courts, approaches to judicial review, the relationship between different branches and levels of government, and the constitutional protection of individual and group rights. Prerequisite: Constitutional Law completed or taken concurrently. (This course was formerly entitled "Comparative Constitutional Law.")
(revised 4/10; title changed 4/10; cross-listed as seminar 4/10)

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Law 623 Topics in Cultural Heritage Law. This course focuses on the claims of discrete cultural groups, nations, and indigenous peoples to both tangible and intangible forms of cultural property. It covers a range of topics including ownership of antiquities, protection of cultural heritage during times of war, repatriation of cultural property and art looted during war, historic preservation, cultural property of indigenous people, traditional knowledge, and traditional cultural expression. (This course was formerly entitled "Property and Culture.") Two credit hours.
(added 4/09; revised 4/10; title changed 4/10; cross-listed as seminar 4/10)

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Law 638 Video Game Law. This seminar will examine the varied legal issues that have spawned (and continue to spawn) in the video game space.  Still a relatively new industry that continues to evolve at a breakneck pace, video games require lawyers to address substantive areas of law in new ways, particularly copyright and trademark law. The course follows a civilian approach to study persons in games, things in games, and how persons acquire things in games. Specific topics include: (a) special copyright considerations in video games, including fair use and DMCA protections; (b) games as entertainment products, and concerns of violent and mature content versus the value and protection of video games as speech under the First Amendment; (c) policing of video game content under self-regulation systems in the U.S. and Europe; (d) conflicts and compromises within the contractual relationships of game developers and game publishers; (e) the expanding role of gamers and their contributions to video games, such as through user-generated content, player communities, fan fiction, etc.; and (f) special legal challenges and controversies arising from online gaming and massively-multiplayer-online games (MMOs).  Students will benefit from prior course work in intellectual property and other related topics, e.g., Copyright Law; Entertainment Law; Internet Law; or Trademarks and Unfair Competition, but these are not prerequisites.  Students will be expected to write and present to the class a paper on a topic of their own choosing.  Grading will be determined from the paper, presentation and class participation.
(added 11/08)

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Law 606 Water Resources Law. This seminar examines the legal regime that governs the allocation and management of surface and ground water in the United States and on international rivers and aquifers. The class will cover the two basic allocation regimes in the United States -- riparian rights and prior appropriation -- and a variety of current topics. These include the capacity of the legal system to adapt to global climate change, the emergence of a human right to water, the impact of environmental laws on the right to divert water, the management of the Great Lakes, and the special rights of Indian Tribes.
(added 11/09)

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Law 623 Work and Family. In this seminar, we will examine the problems of combining work and family from a variety of perspectives. We will discuss law governing the workplace, as well as the structure and culture of work. We will discuss the relationship between family law and work/family decisions and struggles, and we will also discuss the division of labor within families. In addition, the course will address work/family issues as they relate to class, welfare reform, single parent and non-traditional families, and the legal profession.
(added 11/07)

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KPMG Fraud Risk Management1

DEVELOPING

A

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

Foreword

Instances of corporate fraud and misconduct remain a constant threat to public trust and confidence in the capital markets. As organizations strive to achieve compliance with an array of new antifraud laws and regulations that are not prescriptive on the design of controls in this area, management's agenda is focusing on efforts to: •

Understand the fraud and misconduct risks that can undermine their business objectives •

Determine whether antifraud programs and controls are actually effective in reducing instances of fraud and misconduct •

Gain insight on better ways to design and evaluate controls to prevent, detect, and respond appropriately to fraud and misconduct •

Reduce exposure to corporate liability, sanctions, and litigation that may arise from violations of law or market expectations •

Derive practical value from compliance investments by creating a sustainable process for managing risk and improving performance •

Achieve the highest levels of business integrity through sound corporate gover­ nance, internal control, and transparency. This white paper provides an overview of fraud risk management fundamentals, identifies new regulatory mandates from around the world, and spotlights key practices that organizations have generally found to be effective in the current environ me nt. We hope this perspective provides fresh insights as you consider the risks of fraud at home and abroad, and the effectiveness of controls you rely on to miti­ gate those risks

Richard H. Girgenti National Practice Leader KPMG Forensic sM

FRAUD

RISK

MANAGEMENT

Executive Summary

In the wake of high-profile corporate scandals as well as new regulations worldwide, many business leaders are increasingly aware of the need to create company-specific antifraud measures to address internal corporate fraud and misconduct. While acknowledging that no single approach to fraud risk management can fit every orga­ nization's needs, this white paper spotlights key practices that organizations have generally found to be effective when tailoring a company-specific antifraud program, and offers a strategic approach to aligning corporate values with performance. The Business Imperative As companies achieve compliance with new antifraud laws and regulations, their agendas center on management's efforts to: • Understand fraud and misconduct risks that can undermine their business objectives • Reduce exposure to corporate liability, sanctions, and litigation • Achieve the highest levels of business integrity through sound corporate gover­ nance, internal control, and transparency.

Fraud: Any intentional act committed to secure an unfair or unlawful gain. Misconduct: A broad concept, generally referring to violations of law, regula­
tions, internal policies, and market expectations of ethical business conduct. Convergence of Regulatory Challenges In recent years, a variety of laws and regulations have emerged worldwide, provid­ ing organizations with an array of criteria to incorporate into their antifraud efforts. These laws include: • Australia: The Corporate Law Economic Reform Program (Audit Reform & Corporate Disclosure) Act 2004 • Canada: The Canadian Criminal Code • European Union Financial Services Action Plan (FSAP) • United Kingdom:

Companies (Audit, Investigations, and Community Enterprise) Act of 2004 • United States: The USA PATRIOT Act, the Foreign Corrupt Practices Act, the Sarbanes-Oxley Act of 2002, SAS 99, various NYSE & NASDAQ listing standards, and Public Company Accounting Oversight Board (PCAOB) Standard #2

DEVELOPING

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

The Key Objectives: Prevention, Detection, Response An effective, business-driven fraud risk management approach encompasses controls that have three objectives: • Prevent. Reduce the risk of fraud and misconduct from occurring. • Detect. Discover fraud and misconduct when it occurs. • Respond. Take corrective action and remedy the harm caused by fraud or misconduct. Pulling It All Together The challenge for companies is to develop a comprehensive effort to: • Understand all of the various control frameworks and criteria that apply to them. • Categorize risk assessments, codes of conduct, and whistleblower mechanisms into corporate objectives. • Create a broad ranging program that manages and integrates fraud prevention, detection, and response efforts. An Ongoing Process Effective fraud risk management provides an organization with tools to manage risk

in a manner consistent with regulatory requirements as well as the entity's business
needs and marketplace expectations. Such an approach has four phases: • Assess Risks. Identify the scope of the analysis and key stakeholders, profile the current state of fraud risk management, set targets for improvement, and define steps necessary to close the" gap." • Design.

Develop a broad ranging program that encompasses controls to prevent, detect, and respond to incidents of fraud or misconduct. •

Implement. Deploy a strategy and process for implementing the new controls throughout the organization and assign responsibility for leading the overall effort to a senior individual. • Evaluate. Assess existing controls compared with legal and regulatory frame­ works as well as leading practices, such as internal investigation protocols or due diligence practices.

FRAUD

RISK

MANAGEMENT

Defining Fraud and Misconduct

Fraud is a broad legal concept that generally refers to an intentional act committed to secure an unfair or unlawful gain' Misconduct is also a broad concept, generally referring to violations of laws, regulations, internal policies, and market expectations of ethical business conduct. Together, they fall into the following categories of risk that can undermine public trust and damage a company's reputation for integrity: •

Fraudulent financial reporting (e.g., improper revenue recognition, overstatement of assets, understatement of liabilities) •

Misappropriation of assets (e.g., embezzlement, payroll fraud, external theft, procurement fraud, royalty fraud, counterfeiting) •

Revenue or assets gained by fraudulent or illegal acts (e.g., over-billing customers, deceptive sales practices, accelerated revenue, bogus revenue) •

Expenses or liabilities avoided by fraudulent or illegal acts (e.g., tax fraud, wage and hour abuses, falsifying compliance data provided to regulators) •

Expenses or liabilities incurred for fraudulent or illegal acts (e.g., commercial or public bribery, kickbacks) •

Other misconduct (e.g., conflicts of interest, insider trading, discrimination, theft of competitor trade secrets, antitrust practices, environmental violations)

Scandals and failures, together with flourishing and cynical greed, may have profound and prolonged effects on public opinions. It is our collective duty and well understood interest to demonstrate that market economy goes together with integrity and common good.
Michel Prada Chairman of the Autorite des Marches Financiers French Securities Regulators Global Public Policy Symposium October 20, 2005

, Bryan A. Garner. Editor. Black's Law Dictlonarv, Eighth Edition, West Group, 2004

DEVELOPING

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

Convergence of Regulatory Challenges
Governments around the world have responded to corporate scandals and fraudu­ lent activity by instituting legislative and regulatory reforms aimed at encouraging companies to become more self-governing. In recent years, a variety of laws and regulations have emerged, and the timeline in Figure 1 provides a selection of important global regulations and events. Note also that a summary of relevant regulations appears in "Appendix: Selected International Governance and Antifraud Criteria" beginning on page 24.
Figure 1: A Timeline

COSO 1992

Caremark

Case

1996

9805

19905

Commonwealth Criminal Code Act 1995

r-r

000

2001

t!:!,p·····*~'f!!,§····I*kl,~r!lB •••mq,~ •
Revised Combined

U.S.
Sentencing Guidelines 1991 Financial Services Action Plan 1999

Sarbanes-Oxley U.S. Department Revised U.S. Act of 2002 of Justice Sentencing Enforcement Guidelines Proceeds of Guidance 2004 (Thompson Crime Act 2002 Memo) USA PATRIOT Act 2001 2003 (Including ClERP 9 Amendments) 2001 NVSE and NASDAO listing Standards 2003 The Combined Code on Corporate Governance 2003 The Money laundering Regulations 2003 European Council on Economic Fraud 2003

Corporations Act

Code with
Turnbull, Smith,and Higgs Guidance 2005/2006

U.S. Department
of Justice Enforcement Guidance (Holder Memo) 1999

• • •

•

Australia European Union United Kingdom United States

Source KPMG LLP (u. SJ. 2006

Undetected financial fraud is one of the greatest risks to an organization's viability and corporate reputation, and it has the capacity to draw into its sphere all associated people, not only the guilty.
Jeffrey Lucy Chairman, Australian Securities and Investments Commission November 10, 2005

FRAUD

RISK

MANAGEMENT

The Key Objectives: Prevention, Detection, Response
An effective, business-driven fraud and misconduct risk management approach is one that is focused on three objectives:
• Prevention: controls designed to reduce the risk of fraud and misconduct from

occurring in the first place
• Detection: controls designed to discover fraud and misconduct when it occurs • Response: controls designed to take corrective action and remedy the harm

caused by fraud or misconduct
Putting It All Together

Just as there is an array of fraud and misconduct risks facing a company, there is an array of control criteria that various regulatory programs require companies to adopt. The challenge for companies, therefore, is to adopt a comprehensive and integrated approach that takes all relevant considerations into account and enables them to work together. Doing so helps avoid duplicative effort, resource fragmentation, and "slip­ page between the cracks" associated with a one-off or silo approach. Such an undertaking begins with understanding all of the various control frameworks and criteria that apply to the company (see Figure 2). When this categorization is complete, the organization has the information it needs to create a comprehensive program in which the elements of prevention, detection, and response can be inte­ grated and managed.
Figure 2: Selected International Standards

Canada

The Multilateral nstrument 52· 109

Promotes an "internal control culture" for improving the quality of financial reporting in Canada. Seeks to improve transparency in shareholder and management relations as well as the
structure and accountability of management in

Netherlands

Corporate Governance Code of Conduct 2004

the Netherlands. United Kingdom The Companies Act of 2004
Aims to Improve the reliability of financial reporting and the independence of auditors and auditor regulation in the United Kingdom. Introduced substantial changes to the corporate governance and financial disclosure requirements of organizations registered with the Securities and Exchange Commission and listed on U.S. stock exchanges.

United States

Sarbanes-Oxley Act of 2002

Source' KPMG LLP IU.S.), 2006

DEVELOPING

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

Figure 3 lists sample elements of a comprehensive program designed to prevent,

detect, and respond to fraud, Figure 3: Sample Antifraud Program Elements

Prevention

Detection

Response

Board/audit committee oversight

Executive and line management functions

Internal audit, compliance, and monitoring functions

• Fraud and misconduct risk assessment • Code of conduct and related standards • Employee and third­ party due diligence • Communication and training • Process-specific fraud risk controls • Hotlines and whistle­ blower mechanisms • Auditing and monitoring • Proactive forensic data analysis • Internal investigation protocols • Enforcement and accountability protocols • Disclosure protocols • Remedial action protocols

Source. KPMG LLP (US.!. 2006

The next section spotlights some of the common control elements identified in
Figure 3 and offers considerations for their design,

FRAUD

RISK

MANAGEMENT

Prevention

Preventive controls are designed to help reduce the risk of fraud and misconduct from occurring in the first place.
Leadership and Governance

Board/Audit Committee Oversight
An organization's board of directors plays an important role in the oversight and implementation of controls to mitigate the risk of fraud and misconduct. The board, together with management, is responsible for setting the "tone at the top" and ensuring institutional support is established at the highest levels for ethical and responsible business practices. Directors have not only a fiduciary duty to ensure that an organization has programs and controls in place to address the risk of wrongdoing but also a duty to ensure that such controls are effective.' As a practical matter, the board may delegate principal oversight for fraud and miscon­ duct risk management to a committee (typically audit), which is tasked with, among other things: •

Reviewing and discussing issues raised during the entity's fraud and misconduct risk assessment •

Reviewing and discussing with the internal and external auditors findings on the quality of the organization's antifraud programs and controls •

Establishing procedures for the receipt and treatment of questions or concerns regarding questionable accounting or auditing matters. 3

A robust fraud strategy is one that is sponsored at the highest level within a firm and embedded within the culture. Fraud threats are dynamic and fraud­ sters constantly devise new techniques to exploit the easiest target.
Philip Robinson Financial Crime Sector Leader, Financial Services Authority February 27. 2006

, In re Caremark Int'l Derivative Litig., Del. Ch., 698 A.2d 959 (1996).
3

A listed company's audit committee must establish procedures for the receipt, retention, and treatment of complaints regarding accounting, internal accounting controls, or auditing matters. and allow for the confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters. See Exchange Act section 10A(m)(4) and SEC Rule lOA-3(bIl31. effective April 2003, which may be found at hnp://wwwsec.gov/rules/finaI/33-8220.htm.

DEVELOPING

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

Senior Management Oversight

To help ensure that fraud and misconduct controls remain effective and in line with governmental standards, responsibility for the organization's fraud and misconduct risk management approach should be shared at senior levels (i.e., individuals with substantial control or a substantial role in policy-making). This critical oversight begins with prevention and must also be part of detection and response efforts. The chief executive officer is ideally positioned to influence employee actions through his or her executive leadership, specifically by setting the ethical tone of the organiza­ tion and playing a crucial role in fostering a culture of high ethics and integrity. For instance, the chief executive can lead by example, allocating resources to antifraud efforts and holding senior management accountable for compliance violations. Direct responsibility for antifraud efforts should reside with a senior leader, often a chief compliance officer who works together with internal audit staff and desig­ nated subject matter experts. The chief compliance officer is responsible for coordi­ nating the organization's approach to fraud and misconduct prevention, detection, and response. When fraud and misconduct issues arise, this individual can draw together the right resources to deal with the problem and make necessary opera­ tional changes. The chief compliance officer may also chair a committee of cross­ functional managers who: • Coordinate the organization's risk assessment efforts •

Establish policies and standards of acceptable business practice •

Oversee the design and implementation of antifraud programs and controls •

Report to the board and/or the audit committee on the results of the organiza­ tion's fraud risk management activities. Other business leaders such as department heads (e.g., product development, marketing, regulatory affairs, human resources) should also participate in responsi­ bilities under the organization's antifraud strategy; they oversee areas of daily opera­ tions in which risks arise. Such department heads can serve as subject matter experts to assist the chief compliance officer with respect to their particular areas of expert­ ise or responsibility.

Achieving good corporate gover­ nance is not solely the responsi­ bility of the directors, investors and regulators; it should be a core objective of senior manage­ ment. Poor corporate gover­ nance weakens a company's potential and at the worst can pave the way for financial diffi­ culties and even fraud.
Bill Witherell Director for Financial and Enterprise Affairs Organisation for Economic Co-operation and Development CFO Strategies: Corporate Accountability Forum 2004, May 17, 2004

10

FRAUD

RISK

MANAGEMENT

Internal Audit Function

The modern organization's internal audit function is a key participant in antifraud activ­ ities, supporting management's approach to preventing, detecting, and responding to fraud and misconduct. KPMG's 2003 Fraud Survey notes that 65 percent of respon­ dents indicated that frauds were uncovered through the work of internal audit. Such responsibilities represent a change from the more traditional role of internal audit (that is, examining the effectiveness of the entity's controls). In general, internal audit should be responsible for: •

Planning and conducting the evaluation of design and operating effectiveness of antifraud controls •

Assisting in the organization's fraud risk assessment and helping draw conclusions as to appropriate mitigation strategies •

Reporting to the audit committee on internal control assessments, audits, investi­ gations, and related activities.
Fraud and Misconduct Risk Assessment

All organizations typically face a variety of fraud and misconduct risks. Like a more conventional entity-wide risk assessment, a fraud and misconduct risk assessment helps management understand the risks that are unique to its business, identify gaps or weaknesses in control to mitigate those risks, and develop a practical plan for targeting the right resources and controls to reduce risk. Management should ensure that such an assessment is conducted across the entire organization, taking into consideration the entity's significant business units, processes, and accounts. With input from control owners as to the relevant risks to achieving organizational objectives, a fraud and misconduct risk assessment includes the steps listed in
Figure 4.
Figure 4: Fraud Risk Assessment Process
IdentifY business units, locations, or processes to assess .

Inventorv and categorize . fraud/misconduct risks or occurrences

. Rate risks based on the likelillood and significance of occurrence

.
---

Remediate risks through control optimization
-

Source: KPMG LLP (U.S.i, 2006

DEVELOPING

STRATEGY

FOR

PREVENTION,

DETECTION,

AND

RESPONSE

II

While management is responsible for performing a targeted risk assessment process and considering its results in evaluating control effectiveness, the audit committee typically has an oversight role in this process. The audit committee is responsible for reviewing management's risk assessment, ensuring that it remains an ongoing effort, and interacting with the entity's independent auditor to ensure that assessment results are properly communicated.

Code of Conduct
An organization's code of conduct is one of the most important communications vehicles that management can use to communicate to employees on key stan­ dards that define acceptable business conduct. A well-written and communicated code goes beyond restating

company policies-such a code sets the tone for the organization's overall control culture, raising awareness of management's commitment to integrity and the resources available to help employees achieve management's compliance goals' A well-designed code of conduct typically includes: •

High-level endorsement from the organization's leadership, underscoring a commitment to integrity •

Simple, concise, and positive language that can be readily understood by all employees • Topical guidance based on each of the company's major policies or compliance risk areas •

Practical guidance on risks based on recognizable scenarios or hypothetical examples • A visually inviting format that encourages readership, usage, and understanding •

Ethical decision-making tools to assist employees in making the right choices • A designation of reporting channels and viable mechanisms that employees can use to report concerns or seek advice without fear of retribution .

520/0
Percentage of U S employees who reported that their codes of conduct are not taken seriously KPMG ForensIc Integrity Survey

2005 - 2006

I submit that having a code of ethics that is not vigorously implemented is worse than not having a code of ethics. It smacks of hypocrisy. Roel C. Campos Commissioner, U.S. Securities and Exchange Commission October 16, 2002

• Both the NYSE and the NASDAO have adopted corporate governance rules that require US-listed companies to adopt and disclose codes of conduct for directors, officers, and employees, and disclose code waivers for directors or executive offi­ cers. NYSE Rule 303A(1) may be found at wwwnyse.com/aboutJl,sted/1101074746736.html. and NASDAO Rule 4350(n} may be found at hnp:/Inasd.compllnet.com/nasd/display/display.html'rbid=1189&elemenUd=1159000635

11

FRAUD

RISK

MANAGEMENT

Employee and Third-Party Due Diligence
An important part of an effective fraud and misconduct prevention strategy is the use of due diligence in the hiring, retention, and promotion of employees, agents, vendors, and other third parties. Such due diligence may be especially important for those employees identified as having authority over the financial reporting process. The scope and depth of the due dili­ gence process typically varies based on the organization's identified risks, the individual's job function and/or level of authority, and the specific laws of the country in which the organization resides. 5 There are certain situations where screening third parties may be valid. For example, management may wish to screen agents, consultants, or temporary work­ ers who may access confidential information or acquisition targets that may have regulatory or integrity risks that can materially affect the value of the transaction. Due diligence begins at the start of an employment or business relationship and continues throughout. For instance, taking into account behavioral considerations­ such as adherence to the organization's core values-in performance evaluations provides a powerful signal that management cares about not only what employees achieve but also that those achievements were made in a manner consistent with the company's values and standards.

49%
Percentage of U.S. employees who reported that they would be rewarded based on results, not the means used to achieve them KPMG Forensic Integrity Survey 2005 - 2006

Communication and Training
Making employees aware of their obliga­ tions concerning fraud and misconduct control begins with practical communi­ cation and training. While many organi­ zations communicate on such issues in an ad hoc manner, efforts taken without planning and prioritization may fail to provide employees with a clear message that their control responsibilities are to be taken seriously.

550/0
Percentage of U.S. employees who reported that they lacked understanding of the standards of conduct that apply to their jobs KPMG ForensIc Integrity Survey 2005 - 2006

One of the minimum requirements announced by the sentencing gUidelines for organizational defendants calls for the organi­ zation to use reasonable efforts and exercise due diligence to exclude individuals from positions of substantial authority who have engaged in illegal activities. See United States Sentencing Commission. Guidelines Manual. §8B2.1IbIl31 (Nov. 20041

available at hnp://www.ussc.gov/2005guid/CHAP8.pdf.

DEVELOPING

STRATEGY

FOR

PREVENTION.

DETECTION.

AND

RESPONSE

13

In formulating a training and communications plan, management should consider developing fraud and misconduct awareness initiatives that are: • Comprehensive and based upon job functions and risk areas • Integrated with other training efforts, whenever possible • Effective in a variety of settings, using multiple methods and techniques • Regular and frequent, covering the relevant employee population.

Senior management must move from thinking about compliance as chieflv

a cost center to considering the benefits of compliance in protecting
against the legal and reputational risks that can have an impact on the bottom line.

Susan Schmidt Bies U.S. Federal Reserve Board Governor The Bank Administration Institute's Fiduciary Risk Management Conference 2004 Current Issues in Corporate Governance April 26, 2004

14

FRAUD

RISK

MANAGEMENT

Detection

Detective controls are designed to uncover fraud and miscon­ duct when it occurs.
Mechanisms for Seeking Advice and Reporting Misconduct
With the oversight and guidance of senior management, organizations tend to provide employees with multiple channels for reporting concerns about fraud or misconduct. Many typically request that employees follow a process that would begin with alerting their own managers, if possible, or a designated human resources or compliance officer. Telephone "hotlines" are often made available and can be used at any time, although they are usually intended for use when the normal channels are impractical or ineffective. A hotline typically provides a viable method whereby employees, and other third-parties if applicable, are encouraged to: •

Communicate concerns about potential fraud and misconduct, including question­ able accounting or auditing matters •

Seek advice before making decisions when the appropriate course of action is unclear. A well-designed hotline typically includes the following features:

•

Confidentiality. All matters reported via the hotline are treated confidentially.
Hotline operators inform callers that their concerns will be reported only on a "need to know" basis and that relevant safeguards are in place to ensure that such confidentiality is maintained. Hotline operators notify callers if the confiden­ tiality of the matter is subject to any legislative limitations.

• Anonymity. The organization's protocols allow for the anonymous submission and
resolution of calls. For instance, callers who wish to remain anonymous are given a case tracking number that they can later use to provide additional details related to their question or allegation and/or check the status or outcome of their call.

•

Organization-wide Availability. Employees at international locations are able
to use the hotline through features such as real-time interpreting and toll-free call routing.

•

"RealTime" Assistance. The hotline is designed to provide an immediate, "live"
response to a call to facilitate thorough and consistent treatment of a caller's question or concern as well as to provide immediate guidance. Thus, hotline oper­ ators need to be appropriately qualified, trained, and, in some situations, author­ ized to provide advice.

•

Data Management Procedures. The hotline operator uses consistent protocols
for gathering relevant facts and managing the hotline calls

• Classification of Financial Reporting Concerns

The hotline includes protocols
whereby qualified individuals (e.g., internal audit, legal, security) can determine whether the nature of an allegation could trigger a financial reporting risk.

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• Audit Committee Notification, The hotline includes protocols that specify the
nature and timing of allegations that are escalated to the audit committee.

• Follow-up on Non-retaliation. The organization's protocols allow for following up
with employees periodically after the hotline case has been closed (e.g., at one-, three-, and six-month intervals) to ensure that reporting employees have not expe­ rienced retaliation. The company encourages the employees to report any instances of retaliation and takes swift action against those who do retaliate.

• Prominent Communications. The organization publicizes its hotline prominently.
Such communications may include, among others, (1) describing the hotline within the code of conduct and other key company publications and training; (2) displaying the hotline telephone number on posters, banners, wallet cards, screen savers, telephone directories, or desk calendars; and (3) communicating mini­ case-studies based on hotline calls to employees (e.g., in newsletters, training programs, or intra net sites) to demonstrate that the organization values hotline calls and is able to provide assistance to those who use the hotline.

Auditing and Monitoring
Auditing and monitoring systems that are reasonably designed to detect fraud and misconduct are important tools that management can use to determine whether the organization's controls are working as intended. Since it is impossible to audit every fraud and misconduct risk, management should develop a compre­ hensive auditing and monitoring plan that is based on risks identified through the organization's fraud risk assess­ ment process. An auditing and monitoring plan should thus encompass activities that are tailored in depth to the nature and degree of the risk involved, with higher-risk issues receiving priority treatment. Auditing activities (an evaluation of past events) and monitoring activities (an evaluation conducted real-time) should be performed in, but are not limited to, areas where: •

There are specific concerns about a key procedure, account, or position •

The company has a history of fraud and misconduct • There is high employee turnover or organizational change •

Laws and regulations have changed significantly •

Audits are legally required, or governmental agencies are targeting enforcement actions.

33%
Percentage of Australia/New Zealal'd e-rployees report ng that ea Iy warnlrgs of fraud problems were Igrored

KPMG Fraud Survey 2004

16

FRAUD

RISK

MANAGEMENT

An organization's managers involved in auditing and monitoring efforts should not only have sufficient training and experience but also be seen as objective in evaluat ­ ing the controls for which they are responsible. Optimally, auditing and monitoring protocols should: •

Occur in the ordinary course of operations, including during regular management and supervisory activities •

Draw on external information to corroborate internally generated information •

Formally communicate identified deficiencies and exceptions to the organization's senior leadership, so that the harm to the organization is appropriately understood and mitigated •

Use results to enhance and modify other controls, such as communications and training, performance evaluations, and discipline.

Proactive Data Analysis

Many of the indicators of fraud and misconduct, both actual and potential, reside within an organization's financial, operational, and transactional data, and can be identified using data analysis tools and techniques. Such proactive data analysis uses sophisticated analytical tests, computer-based cross matching, and non­ obvious relationship identification to high­ light potential fraud and misconduct that can remain unnoticed by management, often for years The benefits of such an analysis may include, among others: •

Identification of hidden relationships between people, organizations, and events •

A means to analyze suspicious transactions •

An ability to assess the effectiveness of internal controls intended to prevent or detect fraudulent activities •

The potential to continually monitor fraud threats and vulnerabilities

• The ability to consider and analyze thou­ sands of transactions in less time, more efficiently, and cost-effectively than uSing more traditional forensic sampling techniques • The ability to consider a company's unique organizational and Industry issues. Transactions can be analyzed using either retrospective or continuous transaction monitoring. Retrospective analyses allow organizations to analyze transactions in one­ or two-year increments, enabling organiza­ tions to discern patterns that are not visible with shorter-term analyses. Creating the capability to perform retrospective-based proactive forensic data analysis includes steps to • Assess the fraud risk profile of systems

or processes

• Define the overall objectives of the

analysis

• Create a methodology to acquire, extract, and evaluate the data • Define the analyses to be performed • Select software tools to be used in performing the analysis • Perform the analysis, aggregate and prioritize the results, and review and resolve the exceptions identified. Unlike retrospective-based analyses, continuous transaction monitOring allows an organization to identify potentially fraud­ ulent transactions on, for example, a daily, weekly, or monthly basis. Organizations frequently use continuous monitoring efforts to focus on narrow bands of transactions or areas that pose particularly strong risks.

•

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17

Response

Response controls are designed to take corrective action and remedy the harm caused by fraud or misconduct.
Investigations When information relating to actual or potential fraud and misconduct is uncovered, management should be prepared to conduct a comprehensive and objective internal investigation, The purpose of such an investigation is to gather facts leading to a credi­

ble assessment of the suspected violation, so management can decide on a sound course of action. By conducting an effective internal investigation, management can address a poten­ tially troublesome situation and have an opportunity to avert a potentially intrusive government investigation. A well-designed investigative process will typically include the following attributes, among others: •

Oversight by the organization's audit committee, or a special committee of the board, either of which must comprise independent directors who are able to ward off undue pressure or interference from management •

Direction by outside counsel, selected by the audit committee, with little or no ties to the entity's management team, and that can perform an unbiased, independ­ ent, and qualified investigation • Vetting

by the organization's external auditor so that the latter can rely on the proposed scope of work in the audit of the organization's financial statements •

A full-cooperation requirement, allowing no employee or member of management to obscure the facts that gave rise to the investigation •

Reporting protocols, providing the external auditors, regulators, and, where appro­ priate, the public with information relevant to the investigation's findings in a spirit of cooperation and transparency. Based on a number of factors, including the nature of the potential illegal act, parties involved, and materiality, the organization may decide to use one or more of the above steps. Management would consult with the appropriate oversight functions and internal protocols to determine the steps that best address the allegation.
Enforcement and Accountability

A consistent and credible disciplinary system is a key control that can be effective in deterring fraud and miscon­ duct. Appropriate discipline is, addition­ ally, a requirement under leading regulatory frameworks. By mandating meaningful sanctions, management can send a signal to both internal and exter­ nal parties that the organization consid­ ers managing fraud and misconduct risk a top priority.

470/0
Percentage of U.S. employees who reported that wrongdoers would be disciplined fairly regardless of their position.
KPMG ForensIc Integrity Survey

2005 -2006

18

FRAUD

RISK

MANAGEMENT

A well-designed disciplinary process will be communicated to all employees and include company-wide guidelines that promote: •

Progressive sanctions consistent with the nature and seriousness of the offense (e.g., verbal warning, written warning, suspension, pay reduction, location trans­ fer, demotion, or termination) •

Uniform and consistent application of discipline regardless of rank, tenure, or job function. Holding managers accountable for the misconduct of their subordinates is another important consideration. Managers may be disciplined in those instances where they knew, or should have known, that fraud and misconduct might be occurring, or when they: •

Directed or pressured others to violate company standards to meet business objectives or set unrealistic goals that had the same effect •

Failed to ensure employees received adequate training or resources •

Failed to set a positive example of acting with integrity or had a prior history of missing or permitting violations •

Enforced company standards inconsistently or retaliated against others for report­ ing concerns. Corrective Action Once fraud and misconduct has occurred, management should consider taking action to remedy the harm caused. For example, management may wish to consider taking the following steps, among others, where appropriate: • Voluntarily disclosing the results of the investigation to the government or other relevant body (i.e., a regulator) •

Remedying the harm caused •

Examining the root causes of the rele­ vant control breakdowns, ensuring that risk is mitigated and that controls are strengthened • Administering discipline to those

involved in the inappropriate actions as well as to those in management positions who failed to prevent or detect such events •

Communicating to the wider employee population that management took appro­ priate, responsive action. Although public disclosure of fraud and misconduct may be embarrassing to an organi­ zation, management may nonetheless wish to consider such an action in order to combat or preempt negative publicity, demonstrate good faith, and assist in putting the matter to rest.

630/0
Percentage of Australian/New

Zealand organizations that

reported the Incident to the

police.

KPMG Fraud Survey 2004

DEVELOPING

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AND

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19

To Charge or Not to Charge?

In deciding not to charge Seabord Corporation with violations of the federal securities laws following an investigation of alleged accounting irregularities, the SEC announced influential dictum that a company's self-policing, self-reporting, remediation, and coopera­ tion with law enforcement authorities, while no guarantee for leniency, would factor Into the prosecutorial decision-making process. Among other questions the SEC would be asking the following: •

Did the company promptly, completely, and effectively disclose the existence of the misconduct to the public, to regulators, and to self-regulators? •

Did the company cooperate completely with appropnate regulatory and law enforce­ ment bodies? •

Did the company appropriately recompense those adversely affected by the conduct? •

Did it do a thorough review of the nature, extent, origins, and consequences of the conduct and related behavior? •

Did the company promptly make available to our staff the results of its review and provide sufficient documentation reflecting its response to the situation? •

Did the company voluntarily disclose information our staff did not directly request and otherwise might not have uncovered? •

Did the company ask its employees to cooperate with our staff and make all reason­ able efforts to secure such cooperation? Accounting and Auditing Enforcement, Exchange Act Release No. 44,969 (October 23, 2001). The release may be found at www.sec.gov/litlgatlOn/investreport/34-44969.htm.
To Fine or Not to Fine?

In a related opinion on January 4, 2006, the SEC opined that in deciding the appropriate­ ness of a civil monetary penalty levied against a corpora e settlement of action, the follow­ ing factors would be examined: •

The presence or absence of a direct benefit to the corporation as a result of the violation. •

The degree to which the penalty will recompense or further harm the injured share­ holders. •

The need to deter the particular type of offense •

The extent of the injury to innocent parties. •

Whether complicity in the violation is widespread throughout the corporation. •

The level of intent on the part of the perpetrators. •

The degree of difficulty
In

detecting the particular type of offense.

•

Presence or lack of remedial steps by the corporation •

Extent of cooperation with Commission and other law enforcement. Statement of the Securities and Exchange CommiSSion Concerning Financial Penalties, Release 2006-4 (January 4, 2006). The Statement may be found at http.//www.sec.gov /news/press/2006-4. htm.

20

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RISK

MANAGEMENT

An Ongoing Process

An effective fraud risk management approach provides an organization with tools to help manage risk in a manner consistent with regulatory requirements as well as the entity's business needs and marketplace expectations. As described below, develop­ ing such an approach can be achieved in key phases:
•

Assessment of Risks. Assessing the needs of the organization based on the

nature of fraud and misconduct that risk controls are intended to mitigate and the adequacy of existing controls.
•

Design. Developing controls to prevent, detect, and respond to identified risks in

a manner consistent with legal and regulatory criteria and other leading practices.
•

Implementation. Deploying a process for implementing the new controls and

assigning responsibility to individuals with the requisite level of authority, objectiv­ ity, and resources to support the process.
•

Evaluation. Evaluating the design and operating effectiveness of controls through

control self-assessment, substantive testing, routine monitoring, and separate evaluations.
Assessment

The nature of fraud and misconduct risks facing an organization can be as diverse and fluid as the business itself. The risks of fraud and misconduct for a national bank that has experienced rapid growth through acquisitions are different than those of a global energy company seeking to expand crude exploration in emerging markets. Therefore, antifraud measures should be tailored to the unique risks of an organiza­ tion, the specific conditions that give rise to those risks, and the targeted resource needs required in balancing risk and control. The first step is to determine what a company's fraud risks are and how effectively the organization manages these risks. To get started, an organization would consider which business units, processes, systems, and controls, among other factors, may need to be included in the scope of the analysis. The organization can also identify key stakeholders who may need to be involved. Once the organization profiles its current state and sets targets for improvements, it can assess the "gap" it must close to reach the desired state and begin defining the necessary steps to get there
Design

The goal of the control design phase is for management to develop controls that will operate effectively and protect the organization from the risk of fraud and misconduct. However, for an entity to design effective controls, it must first tailor these controls to the risks it is facing as well as the organization's unique business environment.

DEVELOPING

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When designing controls, management should endeavor to do more than observe regulatory requirements (i,e" minimum criteria defined by various regulatory frame­ works), Rather, management should take into account the relevance of a variety of leading practices (i,e" practices that similarly situated organizations have generally found to be effective). Incorporating leading practices into the design of fraud controls increases the likelihood that those controls will ultimately prove to be effective, Each entity is unique and thus will have individualized control considerations, Management would be well served to consider the organization's unique circum­ stances when designing fraud controls, Control attributes that may be appropriate for a global telecommunications company may be inappropriate for a national bank, and vice versa, Management should seek to design controls that satisfy not only legal requirements but also the organization's distinct business needs, Implementation Once fraud controls have been designed, management should establish a strategy and process for implementing the new controls throughout the organization and assign to a senior individual responsibility and resources for leading the overall effort Meaningful and consistent implementation typically requires a substantial change in workplace culture and practices, Therefore, employees should receive clear and frequent communications with respect to when, how, and by whom the controls will be rolled out as well as the manner with which compliance with the new controls will be enforced. Evaluation Simply because a control exists is no guarantee that it is operating as intended. After a control has been operating for a designated period of time, it should be evaluated to determine whether it was designed and implemented to achieve optimal effective­ ness. Such an evaluation should first consider those controls identified as "higher risk" before other, lower-priority controls. On the other hand, simply because a particular control does not yet exist, manage­ ment should not automatically conclude that the organization's risk management objective is not being met In the absence of a specific control, other compensating controls may be operating effectively and mitigating the risk of fraud and misconduct When evaluating the design effectiveness of a control, management should take into account both regulatory requirements and leading practices that similarly situ­ ated organizations have found to correlate with effective risk mitigation. Management can then use a "gap analysis" process to determine whether the control in question

22

FR

AGEME

indeed incorporates the required design criteria. For instance, where a design crite­ ria calls for the organization's whistleblower hotline to allow anonymous submission of questions or concerns regarding accounting and auditing matters, management should seek to determine whether the hotline protocols indeed allow for caller anonymity. To evaluate the operational effectiveness of a particular control, management should focus on the extent to which the control's objectives have been achieved. For exam­ ple, have the mitigation strategies identified during the fraud and misconduct risk assessment been implemented properly? Similarly, management may have put in place a well-designed code of conduct, but are employees actually using the code to guide their day-to-day activities? In the end, the integrity climate will determine the perceptions employees have of the ability of the organization to prevent, detect, and respond to fraud and misconduct and base their own conduct on those perceptions. Only when such basic questions are addressed can management focus on gathering empirical data on control effectiveness using review and evaluation techniques (e.g., proactive forensic data analysis). For instance, management may wish to ascertain whether employees truly understand the standards contained in the code of conduct or whether employees feel comfortable calling the hotline. To gather such hard-to­ audit qualitative data, management may wish to field a survey of employee percep­ tions and attitudes. Such a survey can be a powerful tool, generating data that can be benchmarked against prior-year results to note improvements and demonstrate control effectiveness. An organization's particular situation should be taken into account in conducting an effectiveness evaluation, and such an inquiry should remain ongoing. Management should continuously consider how its risk strategy and control effectiveness are affected by changes in market expectations, external scrutiny, and regulatory or legislative developments.

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Conclusion

Faced with an increasing array of rules and standards governing business conduct, many organizations worldwide continue to struggle with how to mitigate the innu­ merable risks posed by fraud and misconduct The development of a broad ranging fraud risk management program is an impor­ tant step in managing this challenge, Organizations undertaking the effort should begin by assessing how well they are managing fraud risk, Identifying known risks and existing controls is an important first step, Then the organization can determine its ideal future state, perform a gap analysis, and prioritize activities that will help enable the development of a company-specific antifraud program. Such a program will not only help enable appropriate compliance with regulatory mandates but also help the organization align its corporate values and performance as well as protect its many assets, including its reputation,

24

FRAUD

RISK

MANAGEMENT

Appendix: Selected International

Governance and Antifraud Criteria

Australia
Commonwealth Criminal Code Act (1995)

Boards have a responsibility to foster a culture of compliance with Australian law. Under the Criminal Code, a company can be convicted of Commonwealth criminal offenses if it is established that the company had a culture that directed or encour­ aged, tolerated, or led to noncompliance, or that the body failed to maintain a culture that required compliance with relevant legislation. (Schedule, Part 2.5, Division 12)
Corporations Act 2001 (Including CLERP 9 Amendments) (2001)

Directors must exercise their powers and discharge their duties with care and dili­ gence. (Section 180) CEO and CFO of a listed entity must make a declaration that: •

An entity's financial records must be properly maintained in accordance with the Act. •

Financial statements for the financial year must comply with the accounting standards. •

Financial statements must present a true and fair view of the financial position and performance of the entity (Section 295A)
AUS 210 (2002)

Establishes a requirement for auditors to consider fraud and error in an audit of a financial report. (AUS 210)
Australian Stock Exchange Guidance Note 9A (2003)

Requires the board or appropriate board committee to establish policies on risk over­ sight and management. (Principle 7)
Australian Standard 8001 - 2003 Fraud and Corruption Control (2003)

Provides guidance on fraud and corruption control that is considered best practice.

European Union
The Financial Services Action Plan (FSAP) (1999)

The FSAP is designed to create a single market in financial services throughout the EU. Forty-two legislative measures were contemplated as part of the action plan, many of which focused on securities regulation. As of 2004, these measures are having a tremendous effect on the regulation of EU capital markets and, as with the Sarbanes-Oxley Act, have necessitated major adjustments on the part of issuers, accountants and lawyers, and regulators affected by the legislation.
Third Directive on the Prevention of the Use of the Financial System for Money Laundering or Terrorist Financing (2005/60/EC)

Council Directive 2005/60/EC is an update to two earlier directives in response to concerns about money laundering. This Directive requires member states to: •

Fight against money laundering •

Compel the financial sector, including credit institutions, to take various measures to establish customers' identities

DEVELOPING

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25

•

Urge the financial sector to keep appropriate records •

Establish internal procedures to train staff to report suspicions to the authorities and to set up preventive systems within their organizations, This Directive also introduces additional requirements and safeguards for situations of higher risk (e.g., trading with correspondent banks situated outside the EU).

United Kingdom
The Financial Services and Markets Act (2000)

This Act supports the Financial Services Authority's (FSIXs) goal to reduce the likeli­ hood that business carried on by a regulated person, or in contravention of the general prohibition, can be used for a purpose connected with financial crime, As a result, the FSA requires senior management of regulated firms to take responsibility for managing fraud risks, and firms to have effective systems and controls in place proportionate to the particular financial crime risks that they face.
Proceeds of Crime Act (2002)

The Act has strengthened the law on money laundering and sets up an Assets Recovery Agency to investigate and recover assets and wealth obtained as a result of unlawful activity.
Combined Code on Corporate Governance (2003)

The Financial Reporting Council's (FRC) Combined Code on Corporate Governance sets out standards of good practice in relation to issues such as board composition and development, remuneration, accountability and audit, and relations with share­ holders. All companies incorporated in the United Kingdom and listed on the London Stock Exchange are required under the Listing Rules to report on how they have applied the Combined Code in their annual report and accounts, or-where they have not-to provide an explanation. The current version of the Combined Code was published in July 2003. In recent years, related guidance has been issued including the Turnbull guidance on Internal Control, revised in October 2005; the Smith guidance on Audit Committees; and the Higgs guidance on good practices. An implementation review carried out by the FRC in 2005 indicated the Code is having a favorable impact on the quality of corporate governance, The results also turned up no appetite for major change, and only two suggested amendments carried strong support. The FRC began consulting on these amendments in January 2006. The main proposals would be to relax the existing provisions to allow the chairman to sit on the remuneration committee and to add a new provision regarding companies including a "vote withheld" box on the annual general meeting (AGM) proxy voting forms, as recommended by the Shareholder Voting Working Group. Consultation on possible amendments to the Code closed on Apnl 21, 2006, If implemented, the intention is that changes would apply to financial years beginning on or after November 1, 2006,

26

FRAUD

RISK

MANAGEMENT

The Money Laundering Regulations (2003)

In the United Kingdom, these regulations require various kinds of businesses to identify their customers under specific circumstances and to retain copies of identi­ fication evidence for five years. These regulations apply to banks, check cashing businesses, money transmitters, accountants, solicitors, casinos, estate agents, bureaus de change, and dealers in high-value goods. Employers may be prosecuted for a breach of these regulations if they fail to train staff.

United States
Director and Officer Liability (August 1996)

The Delaware Chancery Court in In re Caremark Int'llne. Derivative Litigation held that boards of directors that exercise reasonable oversight of a compliance program may be eligible for protection from personal liability in shareholder civil suits result­ ing from employee misconduct. A director's fiduciary duty goes beyond ensuring that a compliance program exists, but also includes a good faith duty to ensure that the organization's compliance program is adequate.
Department of Justice Prosecution Policy (Original June 1999, revised January 2003) The Department of Justice's guidance (the Thompson Memo) instructs federal pros­

ecutors that while having in place a compliance program does not absolve a corpora­ tion from criminal liability, it may provide factors that can be used in determining whether to charge an organization or only its employees and agents with a crime. These factors include evaluating whether: • The compliance program is merely a "paper program" or is designed and imple­ mented effectively •

Corporate management is enforcing the program or tacitly encouraging or pres­ suring employees to engage in misconduct to achieve business objectives • The corporation has sufficient staff to audit and evaluate results of its compliance efforts •

Employees are informed about the program and are convinced of the corporation's commitment to it.
Sarbanes-Oxley Act of 2002

The U.S. government had responded to widespread cases of corporate fraud and misconduct by passing the Sarbanes-Oxley Act of 2002. The Act includes the follow­ ing sections, among others: •

Section 301: Requires audit committees to establish procedures to receive, retain, and treat complaints from employees and others about accounting, internal accounting controls, or auditing matters •

Section 404: Management and external auditors are to evaluate the effectiveness of a company's internal control over financial reporting based on a suitable control framework. •

Section 406: Instructs the SEC to issue rules requiring companies to either adopt a code of ethics applicable to senior financial officers or disclose why they do not.

DEVELOPING

STRATEGY

FOR

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DETECTION.

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27

•

Section 806: Requires all companies regulated by the SEC to have in place a
mechanism whereby a whistleblower could report a violation of law or SEC rule. and to protect from retaliation any person who uses that mechanism.

•

Section 1107: Provides penalties and/or fines for retaliating against any corporate
whistleblower, amending section 1513 ofTitle 18, United States Code. Most companies in the United States are applying the integrated internal control framework developed by the Committee of Sponsoring Organizations (COSO) of the Treadway Commission for this purpose. Generally speaking, COSO addresses ethics and compliance program elements in company-level components that have a perva­ sive influence on organizational behavior. such as the control environment. Examples of company-level control considerations include: •

Establishment of the tone at the top by the board and management •

Existence of codes of conduct and other policies regarding acceptable business practices •

Extent to which employees are made aware of management's expectations •

Pressure to meet unrealistic or short-term performance targets •

Management's attitude toward overriding established controls •

Extent to which adherence to the code of conduct is a criterion in performance appraisals •

Extent to which management monitors whether internal control systems are working •

Establishment of channels for people to report suspected improprieties •

Appropriateness of remedial action taken in response to violations of the code of conduct
NYSE Listing Standards Section 303A, Corporate Governance Standards (Modified, November 2004)

Qualitative Listing Requirements for the NASDAQ National Market (Amended, April 2004) In response to the provisions of the Sarbanes-Oxley Act. both the NYSE and NASDAQ adopted new corporate governance rules for listed companies. While the specific rules for each exchange differ, each have standards that require listed companies to (1) adopt and disclose codes of conduct for directors, officers, and employees and (2) disclose any code of conduct waivers for directors or executive officers. In addi­ tion, each exchange requires listed companies to adopt mechanisms to enforce their codes of conduct.
U.S. Sentencing Guidelines Criteria (Amended, November 2004)

The federal sentencing guidelines for organizational defendants establish minimum compliance and ethics program requirements for organizations seeking to mitigate penalties for corporate misconduct. These guidelines make explicit the expectation that organizations promote a culture of ethical conduct, tailor each program element based on compliance risk, and periodically evaluate program effectiveness.

28

FRAUD

RISK

MANAGEMENT

Specifically, the amended guidelines call on organizations to: •

Promote a culture that encourages ethical conduct and a commitment to compli­ ance with the law •

Establish standards and procedures to prevent and detect criminal conduct •

Ensure the board of directors and senior executives exercise reasonable and informed oversight over the compliance and ethics program • Assign a high-level individual within the organization to ensure the organization has an effective compliance and ethics program, and delegate day-to-day opera­ tional responsibility to individuals with adequate resources, authority, and direct access to the board •

Use reasonable efforts and exercise due diligence to exclude individuals from positions of substantial authority who have engaged in illegal activities or other conduct inconsistent with an effective compliance and ethics program •

Conduct effective training programs for directors, officers, employees, and other agents and provide such individuals with periodic information appropriate to their respective roles and responsibilities relative to the compliance and ethics program •

Ensure that the compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct •

Publicize a system, which may include mechanisms for anonymity and confiden­ tiality, whereby the organization's employees and agents may report or seek guid­ ance regarding potential or actual misconduct without fear of retaliation •

Evaluate periodically the effectiveness of the compliance and ethics program •

Promote and enforce consistently the compliance and ethics program through incentives and disciplinary measures •

Take reasonable steps to respond appropriately to misconduct, including making necessary modifications to the compliance and ethics program.

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1. Latin Terms Complete Dictionary List - Georgia State University

   ... contract bill bill of attainder bill of costs bill of exchange bill of .... qui eir either ejectment ejusdem generis elder law election of remedies election .... on civil and political rights international crime international criminal .... restatement of the law restitution restorative justice restraining order ...
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   A bill of attainder is a statute which punishes an individual or an easily ...... act is one which would ordinarily be regarded as illegal or criminal ...
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   Where a criminal defendant refuses to respond to the court, the court may ...... District Court imposes bills of attainder whenever it deprives the de jure ...
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About Victims' Rights

GENERAL OVERVIEW

Introduction

Thirty years ago, victims had few legal rights to be informed, present and heard within the criminal justice system. Victims did not have to be notified of court proceedings or of the arrest or release of the defendant, they had no right to attend the trial or other proceedings, and they had no right to make a statement to the court at sentencing or at other hearings. Moreover, victim assistance programs were virtually non-existent.

Since then, there have been tremendous strides in the creation of legal rights and assistance programs for victims of crime. Today, every state has an extensive body of basic rights and protections for victims of crime within its statutory code. Victims' rights statutes have significantly influenced the manner in which victims are treated within the federal, state, and local criminal justice systems.

The core rights for victims of crime include:

• The right to attend criminal justice proceedings;
• The right to apply for compensation;
• The right to be heard and participate in criminal justice proceedings;
• The right to be informed of proceedings and events in the criminal justice process, of legal rights and remedies, and of available services;
• The right to protection from intimidation and harassment;
• The right to restitution from the offender;
• The right to prompt return of personal property seized as evidence;
• The right to a speedy trial; and
• The right to enforcement of these rights.

Victims’ Rights Constitutional Amendments

In addition to statutory victims’ rights, nearly two-thirds of the states have adopted amendments to their state constitutions guaranteeing rights to victims of crime. Including crime victims’ rights in state constitutions increases the strength, permanence, and enforceability of victims’ rights.

Rights that are guaranteed by a constitution are stronger than rights that are set out only in statutes. No state law is valid if it violates a provision of a state’s constitution; no state law or state constitutional provision, and no federal law, can violate a provision of the United States Constitution.

Incorporating victims’ rights into constitutions also gives those rights a degree of permanence. Ordinary statutes can be changed at any time by the legislature. In contrast, it is relatively difficult to change the constitution of a state or that of the United States. In most states, a constitutional amendment must be passed by each house of the legislature by a two-thirds majority. This must usually be done at least twice, often with a legislative election between votes. Identical language must be passed each time. The amendment is then presented to the voters at a general election for ratification. Therefore, in most states the process of adopting a constitutional amendment takes several years. As a result, once crime victims’ rights are incorporated into a state’s constitution, they are likely to remain there indefinitely.

In addition, giving victims’ rights constitutional protections generally makes those rights enforceable. If an official or a state agency violates a constitutional right, a court usually has the power to order that official or agency to comply with the constitution.

The first state to adopt a constitutional amendment providing rights to crime victims was California, in 1982. While modest in scope, the Victims’ Bill of Rights amendment provided California victims a right to restitution from the offender, and specifically recognized the importance of enacting “comprehensive provisions and laws ensuring a bill of rights for victims of crime.” To date, 32 states have incorporated crime victims’ rights in their constitutions.

The scope of victims’ rights amendments varies from state to state. Many are limited to victims of felonies or victims of violent offenses. A few specifically extend to victims of juvenile offenders. In general, the amendments give victims constitutional rights to:

• be treated with fairness, dignity and respect;
• be informed of proceedings and events, such as the release of the defendant;
• attend the trial and other proceedings;
• be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and
• be awarded restitution from a convicted offender.

Some state amendments include a few broadly worded rights, while others provide a long list of rights for victims.

Who May Exercise Victims' Rights

Exactly who the law considers a "victim" entitled to a particular right is defined by the federal, state, or tribal code. In some jurisdictions, basic rights are afforded only to victims of felonies, while in others, victims of any violent crime, whether felony or misdemeanor, may enjoy such rights. Many jurisdictions also provide rights to victims of serious juvenile offenses.

Many laws extend victims' rights to the surviving family members of a homicide victim, or to the parent, guardian, or other relative of a minor, disabled or incompetent victim. In some states, a victim's legal representative or another person designated by the victim may exercise rights on the victim's behalf.

Along with general rights for crime victims, many jurisdictions have created special rights for certain groups of crime victims with unique needs. These include victims of sexual assault, domestic violence or stalking, or victims who are elderly, young children, or victims with disabilities.

THE RIGHT TO ATTEND

Introduction

Most jurisdictions give crime victims and their families the right to be present during criminal justice proceedings. This right is important to victims, who often want to see the criminal justice process at work. They may want to hear counsel’s arguments and view the reactions of the judge, jury, and defendant.

Proceedings Victims May Attend

The victim's right to attend proceedings includes the right to attend the trial, sentencing, and parole hearing of the offender, but may include other proceedings as well. Some states provide that victims have the right to attend “those proceedings at which a defendant has the right to be present."

Exclusion of Witnesses

A victim’s right to attend the trial is often limited in cases where the victim is also a witness in the criminal case. A longstanding rule of evidence provides for the exclusion, or “sequestering,” of witnesses during the trial. This rule was designed to prevent witnesses from being influenced by the testimony of other witnesses in the case. Some jurisdictions require any witness to be excluded on the request of a party while others leave exclusion to the discretion of the judge. Increasingly, jurisdictions are changing this rule on witnesses to allow victims to remain in the courtroom even when they will be a witness, or to require the court to first rule that the victim’s testimony is likely to be influenced by the testimony of other witnesses before ordering the victim to be kept out of the courtroom.

Presence of Support Persons

Crime victims may benefit from having a support person present during proceedings. The supportive presence of a trusted advocate or family member often enables a crime victim to exercise his or her right to be present during proceedings. Recognizing this, a number of states give crime victims a right to have an advocate or support person present during proceedings.

Employment Protection While Attending Proceedings

A majority of states have adopted laws protecting the employment of victims who participate in court-related activities. Some states only protect victims’ employment when they are subpoenaed to appear in court. Others provide employment protection whenever the victim attends hearings or consults with the prosecutor prior to the trial. The strongest laws prohibit employers from terminating or penalizing certain victims who miss work due to court appearances, medical appointments, or counseling sessions.

THE RIGHT TO COMPENSATION

Introduction

Crime victim compensation is a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible for limited compensation. Generally, victims apply to the compensation program of the state where they live or where the crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.

Most jurisdictions require that law enforcement or the prosecutors’ office notify crime victims that they may be eligible for crime victim compensation. The law may require that victims be given a written brochure or informed verbally.

Eligibility

Most compensation programs are open to the direct victims of violent crime, or to their surviving family members. A few allow victims of serious financial crime to seek compensation for counseling expenses. Those who pay a victim’s medical or funeral expenses may be eligible for direct reimbursement from the compensation program.

In order to be eligible, the victim must generally have reported the crime during a certain period of time and cooperated in the prosecution of the case. They must also file an application for compensation within a certain time period. Victims may be ineligible if their own misconduct contributed to their injuries—for example, if they were injured while they were committing a crime.

Compensable Expenses

Each state determines which expenses it will cover. Most compensation programs will be medical expenses, counseling expenses, lost wages, and funeral expenses. Many will pay for a sexual assault forensic exam, crime scene cleanup, family member counseling, or other related expenses. With very limited exceptions, they do not pay for property loss or for pain and suffering. Compensation programs are “payers of last resort.” They will only pay what is not covered by insurance or another source of assistance.

Each state has a cap on the total compensation that will be paid in a case, and may also have limits on various categories of expenses, such as no more than $5,000 for burial expenses or $350 for crime scene cleanup.

Procedural Issues

State law sets out the application and award procedures, as well as payment procedures, appeal procedures, and confidentiality of information received. State law generally also provides that compensation awards are not considered in bankruptcy proceedings and may not be taxed.

State law also generally sets out the source of funding for the compensation program—often a fine on criminal offenders. Some state compensation programs also administer a separate program to collect offender profits from crime, often called “notoriety-for-profit” programs.

RIGHT TO BE HEARD

Introduction

One of the most significant rights for crime victims is the right to be heard during critical criminal justice proceedings that affect their interests. Such participation is the primary means by which victims play a proactive role in the criminal justice process. When a crime victim is allowed to speak at the sentencing hearing, or to submit a victim impact statement regarding the impact of the offense on the victim and the victim’s family, there is an acknowledgment by the criminal justice system of the personal nature of the crime and of the harm suffered.

Conferral with Prosecutor

Several jurisdictions have adopted laws requiring the prosecutor to obtain the views of the victim before a disposition is final, whether this involves a plea agreement, dismissal of charges, or a pretrial diversion of the defendant. A few jurisdictions require the prosecutor to certify to the court that he or she has consulted the victim before a plea can be accepted.

Communication with the Court or other Authority

Most jurisdictions give victims the right to be heard by the court or another authority, such as the parole board, before major decisions are made. The most common stage for this during the criminal justice process is at sentencing.

Every state allows some form of victim impact information at sentencing. The majority of states require victim impact information to be included in the pre-sentence report and allow victim impact statements to be presented at the sentencing hearing. Generally, the law specifies that victim impact statements may be oral or written, but in several states the statement may also be submitted by videotape, audiotape, or other electronic means.

In general, victim impact statements may be given by the victim, homicide survivors, or the parent or guardian of a minor victim. Many states also authorize statements by a representative or family member of a victim who is physically incapacitated, however some limit such representative’s statements to cases where the incapacitation was the direct result of the crime.

Victim impact information usually describes the harm the offense has had on the victim, including descriptions of the financial, physical, psychological or emotional impact, harm to familial relationships, descriptions of any medical treatments or psychological services required by the victim or the victim's family as a result of the victimization, and the need for any restitution. State law might list the elements to be included in the statement, or it may simply permit a "description of the impact of the offense." In addition, many states allow the victim to state his or her opinion about the appropriate sentence.

In addition to allowing victim impact statements at sentencing, the majority of states also permit victim input at the parole hearing of the offender. In order to provide such input, the victim is usually required to maintain a current address on file with the parole board, the prosecutor's office, or some identified criminal justice agency. A vast majority of states allow victims to present a written or oral statement to the parole board for consideration at the parole hearing. A few states specifically authorize the use of audio or videotaped statements at the parole hearing.

Communication with the Defendant

Along with communicating to criminal justice officials, many states provide a victim the right to communicate with the defendant. This may take the form of a structured “victim-offender mediation” program, where a third party arranges a formal meeting between a victim or surviving family member and a convicted offender. Several jurisdictions also give victims the opportunity to serve on a victim impact panel to educate convicted offenders about the real-world impact of crime.

THE RIGHT TO BE INFORMED

Introduction

The criminal justice system is often required to provide general information of interest to victims. Most states also give victims or their families the right to be notified of important, scheduled criminal proceedings and the outcomes of those proceedings. They also notify victims when hearings have been canceled and rescheduled.

General Information Provided to Victims

The general information that criminal justice officials are often required to provide includes: notice of the availability of crime victim compensation; referrals to victim services, such as rape crisis centers, battered women’s shelters, and general victim service agencies; information about the steps involved in a criminal prosecution; and contact information for an individual within the criminal justice system.

In addition, victims may also have the right to be informed of various legal rights, including the rights to: attend a proceeding and/or submit a victim impact statement; sue the offender for money damages in the civil justice system; have a court order that they be protected from the offender and/or the offender's family and associates; and collect witness fees for their testimony, among others.

Notice of Events and Proceedings in the Criminal Justice Process

There are dozens of events or proceedings in the ordinary criminal justice process for which notice may be required by statute. These commonly include:

• Arrest of the accused;
• Arraignment of the defendant;
• Bail release and related proceedings;
• Pretrial release and related proceedings;
• Dismissal of charges;
• Negotiated pleas and entry of plea bargain;
• Trial dates and times;
• Sentencing hearings;
• Final sentence or disposition;
• Conditions of probation or parole;
• Post-trial relief proceedings;
• Appeals process and related proceedings;
• Parole release and related proceedings;
• Pardon/commutation of sentence and related proceedings;
• Cancelled and rescheduled proceedings;
• Final release from confinement, including from a mental institution; and
• Escape and subsequent recapture of offender.

Some of the notice requirements listed above have been more widely adopted by states than others. For example, nearly every state notifies victims of the trial date and time and the sentencing hearing. Fewer notify victims of the offender’s release on bail. Following conviction, most states notify victims of the offender’s parole hearing or parole release, but only a few notify victims of an offender’s pardon or commutation of sentence.

In addition to the events and proceedings most commonly addressed in state victim notification laws, some states notify victims of: the grand jury hearing; probation or parole revocation proceedings; the transfer of a convicted offender to an out-of-state prison facility; and the death of the offender.

Victim Notification Systems

Many laws that provide for victim notification also address the form of that notification. For example, laws regarding notification of bail release in some jurisdictions require immediate notice to the victim by telephone, while in others, “notification” may be limited to providing crime victims a telephone number to call to find out whether an arrested defendant has been released.

A number of jurisdictions have implemented automated victim notification systems to comply with their victim notification laws. Victims can call a toll-free number 24 hours a day to inquire about an offender’s status or register to be notified immediately of an offender’s release, escape, transfer, or court appearance. Once notification is triggered, the system will attempt to contact the victim at the number(s) provided and continue to do so for a designated period of time or until the victim answers the call.

THE RIGHT TO PROTECTION

Introduction

Many jurisdictions give crime victims the right to protection during the criminal justice process. This right may take the form of a generally stated right to protection, or may include specific protective measures. Most jurisdictions have defined criminal offenses of intimidation of victims or witnesses. Many provide that victims must be informed of protective procedures that are available.

Protective Measures

Measures to protect crime victims take various forms. Some examples include:

• Police escorts to and from court;
• Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
• Witness protection programs;
• Residence relocation; and
• Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.

Several jurisdictions have also enacted laws to make it easier for victims to participate in the criminal justice process. Some give victims the right to refuse or limit any interviews with defense attorneys. Others provide for special court arrangements for vulnerable victims, such as young children. These arrangements may include closed-circuit testimony from outside the courtroom, arranging the courtroom so the victim does not see the defendant, or closing the courtroom to the general public.

Employment Protection

Many states also provide a means to protect a victim’s job or economic status during the criminal justice process. This many include requiring the prosecutors’ office to intervene with employers or creditors on request, or prohibiting employers from firing or punishing a victim from taking time off to participate in the criminal justice process.

THE RIGHT TO RESTITUTION

Introduction

The term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.

Courts have the authority to order restitution by convicted offenders as part of their sentences.  In approximately one-third of states, courts are required to order restitution to victims in cases involving certain types of crimes, typically violent felony offenses. In many other states, if the court fails to order restitution, or orders restitution for only part of the victim’s losses, the court must state its reasons for doing so on the record. Payment of restitution is often a condition of probation or parole as well.

Not only can courts order restitution to the direct victim of a crime, they are often able to order restitution to the state victim compensation board, if that board has paid some of the victim’s expenses, or to a victim service agency that provided assistance to the victim.

Losses Covered

Restitution can cover any out-of-pocket losses directly relating to the crime, including:

• medical expenses;
• therapy costs; 
• prescription charges; 
• counseling costs; 
• lost wages; 
• expenses related to participating in the criminal justice process (such as travel costs and child care expenses); 
• lost or damaged property; 
• insurance deductibles; and
• other expenses that resulted directly from the crime. 

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonably expected future losses, such as ongoing medical or counseling expenses.

In calculating the restitution owed, a court will look at the victim’s losses. The court may also consider the defendant’s financial resources or other financial obligations, either in setting the total amount of restitution owed or when formulating a payment plan for the defendant.

C ollecting Restitution

Courts may order restitution to be paid immediately, or may set a payment plan. Often the court clerk is designated to receive payments, but where restitution is a condition of probation or parole, the probation or parole office may be responsible for collection.

Because a defendant may be ordered to pay various fines and fees, as well as restitution to one or more victims, a jurisdiction may set out a priority of payments. For example, the law may state that each payment received from a defendant is to be split among all the obligations, or that the restitution must be paid first, followed by fines and fees.

Many jurisdictions provide that restitution orders become civil judgments.  This expands the ability of victims to collect restitution and also means that the orders can remain in effect for many years, typically 10 to 20 years.  In many jurisdictions, civil judgments can be renewed, so they can stay in effect even longer.  Depending on the jurisdiction, the civil judgment may be enforceable immediately, or enforceable when the offender defaults on payment, or enforceable only after the criminal justice process is completed and the offender has been released from probation, prison, or parole. 

In some states, authorities are entitled to seize offenders' financial assets and property through garnishment and attachment to satisfy restitution orders. This authority may be granted immediately, or only after the defendant fails to pay as ordered.

When payment of restitution is a condition of probation or parole, probation or parole may be revoked if the defendant willfully fails to pay.

In those states with prison work programs, restitution payments are typically collected out of the wages of those programs.  Some states collect restitution from state income tax refunds, prisoner accounts, lottery winnings, or damage awards from lawsuits against the prison.  

Offender profits from crime

Many jurisdictions have laws that prohibit convicted offenders from making a profit from their crime. These are often called “notoriety-for-profit” laws. Under these laws, the offender is typically required to notify a state agency when he or she enters into a contract related to the crime. The state agency then freezes or holds the profit and notifies the victim. The victim has a certain amount of time to bring a civil suit against the offender.

RIGHT TO RETURN OF PROPERTY

A victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held as evidence.

All 50 states and the District of Columbia have passed laws outlining procedures for the return of stolen or personal property seized for evidentiary purposes in subsequent criminal proceedings.

In most states, property may be returned to its owner when it is no longer needed as evidence in a criminal prosecution. Since this often means the victim is deprived of his or her property for months or even years while the case is appealed or retried, some states have attempted to impose specific time requirements for the return of property.

A number of states have attempted to promote the prompt return of property needed as evidence by authorizing a photograph of the item to be serve as evidence.

THE RIGHT TO A SPEEDY TRIAL

A number of jurisdictions give crime victims the right to “a speedy trial” or “disposition of the case free from unreasonable delay.”

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances. “Continuances” are court-ordered delays of court proceedings. Many jurisdictions require that, in ruling on a continuance requested by a party, the court must also consider the impact of the delay on the victim.

In addition, several jurisdictions give priority to certain types of cases. They may require that cases involving children, or vulnerable elderly victims, be given preference in setting the court docket.

THE RIGHT TO ENFORCEMENT/REMEDIES OF VICTIMS

Introduction

Since crime victims have been afforded legal rights in every state, they also need ways to ensure that those rights are enforced.

Enforcement Mechanisms

A jurisdiction may promote the enforcement of victims’ rights through court proceedings. In a few jurisdictions, victims have “legal standing” to assert their rights. Because a crime victim is not a “party” to the case—that status is limited to the defendant and the prosecuting jurisdiction (such as the state)—legal standing for victims is not automatic but must be provided by statute or court ruling. In some jurisdictions, the victim does not have standing, but the prosecutor or some other official has the authority to seek court enforcement of the victim’s rights.

Aside from general “standing” to assert rights, some jurisdictions have other limited court options for enforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency to comply with the law, or allow other limited actions.

Several states have created a designated entity to receive, investigate, and attempt to resolve crime victim complaints. In some states, this may be an ombudsman or state victim advocate; in others, it may be a committee or board. Experience in those states has shown that the majority of calls from crime victims are resolved by providing information or referrals. However, many go on to the formal complaint and investigation stages. Some states also give the investigatory agency the ability to impose consequences on offending agencies or officials found to have violated a victim’s rights.

Limitations on Enforcement

Many victims’ bills of rights state that violation of a right does not create a civil cause of action against any government agency or official. Also, most specifically provide that a failure to provide a right to a victim cannot be raised by a defendant as a ground for appeal.

Disclaimer

This information is provided as a general overview of crime victims’ rights, which vary in scope and strength across the state, tribal, and federal criminal justice systems. It is not intended to serve as legal advice or statutory interpretation for any given jurisdiction.

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About Victims' Rights

GENERAL OVERVIEW

Introduction

Thirty years ago, victims had few legal rights to be informed, present and heard within the criminal justice system. Victims did not have to be notified of court proceedings or of the arrest or release of the defendant, they had no right to attend the trial or other proceedings, and they had no right to make a statement to the court at sentencing or at other hearings. Moreover, victim assistance programs were virtually non-existent.

Since then, there have been tremendous strides in the creation of legal rights and assistance programs for victims of crime. Today, every state has an extensive body of basic rights and protections for victims of crime within its statutory code. Victims' rights statutes have significantly influenced the manner in which victims are treated within the federal, state, and local criminal justice systems.

The core rights for victims of crime include:

• The right to attend criminal justice proceedings;
• The right to apply for compensation;
• The right to be heard and participate in criminal justice proceedings;
• The right to be informed of proceedings and events in the criminal justice process, of legal rights and remedies, and of available services;
• The right to protection from intimidation and harassment;
• The right to restitution from the offender;
• The right to prompt return of personal property seized as evidence;
• The right to a speedy trial; and
• The right to enforcement of these rights.

Victims’ Rights Constitutional Amendments

In addition to statutory victims’ rights, nearly two-thirds of the states have adopted amendments to their state constitutions guaranteeing rights to victims of crime. Including crime victims’ rights in state constitutions increases the strength, permanence, and enforceability of victims’ rights.

Rights that are guaranteed by a constitution are stronger than rights that are set out only in statutes. No state law is valid if it violates a provision of a state’s constitution; no state law or state constitutional provision, and no federal law, can violate a provision of the United States Constitution.

Incorporating victims’ rights into constitutions also gives those rights a degree of permanence. Ordinary statutes can be changed at any time by the legislature. In contrast, it is relatively difficult to change the constitution of a state or that of the United States. In most states, a constitutional amendment must be passed by each house of the legislature by a two-thirds majority. This must usually be done at least twice, often with a legislative election between votes. Identical language must be passed each time. The amendment is then presented to the voters at a general election for ratification. Therefore, in most states the process of adopting a constitutional amendment takes several years. As a result, once crime victims’ rights are incorporated into a state’s constitution, they are likely to remain there indefinitely.

In addition, giving victims’ rights constitutional protections generally makes those rights enforceable. If an official or a state agency violates a constitutional right, a court usually has the power to order that official or agency to comply with the constitution.

The first state to adopt a constitutional amendment providing rights to crime victims was California, in 1982. While modest in scope, the Victims’ Bill of Rights amendment provided California victims a right to restitution from the offender, and specifically recognized the importance of enacting “comprehensive provisions and laws ensuring a bill of rights for victims of crime.” To date, 32 states have incorporated crime victims’ rights in their constitutions.

The scope of victims’ rights amendments varies from state to state. Many are limited to victims of felonies or victims of violent offenses. A few specifically extend to victims of juvenile offenders. In general, the amendments give victims constitutional rights to:

• be treated with fairness, dignity and respect;
• be informed of proceedings and events, such as the release of the defendant;
• attend the trial and other proceedings;
• be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and
• be awarded restitution from a convicted offender.

Some state amendments include a few broadly worded rights, while others provide a long list of rights for victims.

Who May Exercise Victims' Rights

Exactly who the law considers a "victim" entitled to a particular right is defined by the federal, state, or tribal code. In some jurisdictions, basic rights are afforded only to victims of felonies, while in others, victims of any violent crime, whether felony or misdemeanor, may enjoy such rights. Many jurisdictions also provide rights to victims of serious juvenile offenses.

Many laws extend victims' rights to the surviving family members of a homicide victim, or to the parent, guardian, or other relative of a minor, disabled or incompetent victim. In some states, a victim's legal representative or another person designated by the victim may exercise rights on the victim's behalf.

Along with general rights for crime victims, many jurisdictions have created special rights for certain groups of crime victims with unique needs. These include victims of sexual assault, domestic violence or stalking, or victims who are elderly, young children, or victims with disabilities.

THE RIGHT TO ATTEND

Introduction

Most jurisdictions give crime victims and their families the right to be present during criminal justice proceedings. This right is important to victims, who often want to see the criminal justice process at work. They may want to hear counsel’s arguments and view the reactions of the judge, jury, and defendant.

Proceedings Victims May Attend

The victim's right to attend proceedings includes the right to attend the trial, sentencing, and parole hearing of the offender, but may include other proceedings as well. Some states provide that victims have the right to attend “those proceedings at which a defendant has the right to be present."

Exclusion of Witnesses

A victim’s right to attend the trial is often limited in cases where the victim is also a witness in the criminal case. A longstanding rule of evidence provides for the exclusion, or “sequestering,” of witnesses during the trial. This rule was designed to prevent witnesses from being influenced by the testimony of other witnesses in the case. Some jurisdictions require any witness to be excluded on the request of a party while others leave exclusion to the discretion of the judge. Increasingly, jurisdictions are changing this rule on witnesses to allow victims to remain in the courtroom even when they will be a witness, or to require the court to first rule that the victim’s testimony is likely to be influenced by the testimony of other witnesses before ordering the victim to be kept out of the courtroom.

Presence of Support Persons

Crime victims may benefit from having a support person present during proceedings. The supportive presence of a trusted advocate or family member often enables a crime victim to exercise his or her right to be present during proceedings. Recognizing this, a number of states give crime victims a right to have an advocate or support person present during proceedings.

Employment Protection While Attending Proceedings

A majority of states have adopted laws protecting the employment of victims who participate in court-related activities. Some states only protect victims’ employment when they are subpoenaed to appear in court. Others provide employment protection whenever the victim attends hearings or consults with the prosecutor prior to the trial. The strongest laws prohibit employers from terminating or penalizing certain victims who miss work due to court appearances, medical appointments, or counseling sessions.

THE RIGHT TO COMPENSATION

Introduction

Crime victim compensation is a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible for limited compensation. Generally, victims apply to the compensation program of the state where they live or where the crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.

Most jurisdictions require that law enforcement or the prosecutors’ office notify crime victims that they may be eligible for crime victim compensation. The law may require that victims be given a written brochure or informed verbally.

Eligibility

Most compensation programs are open to the direct victims of violent crime, or to their surviving family members. A few allow victims of serious financial crime to seek compensation for counseling expenses. Those who pay a victim’s medical or funeral expenses may be eligible for direct reimbursement from the compensation program.

In order to be eligible, the victim must generally have reported the crime during a certain period of time and cooperated in the prosecution of the case. They must also file an application for compensation within a certain time period. Victims may be ineligible if their own misconduct contributed to their injuries—for example, if they were injured while they were committing a crime.

Compensable Expenses

Each state determines which expenses it will cover. Most compensation programs will be medical expenses, counseling expenses, lost wages, and funeral expenses. Many will pay for a sexual assault forensic exam, crime scene cleanup, family member counseling, or other related expenses. With very limited exceptions, they do not pay for property loss or for pain and suffering. Compensation programs are “payers of last resort.” They will only pay what is not covered by insurance or another source of assistance.

Each state has a cap on the total compensation that will be paid in a case, and may also have limits on various categories of expenses, such as no more than $5,000 for burial expenses or $350 for crime scene cleanup.

Procedural Issues

State law sets out the application and award procedures, as well as payment procedures, appeal procedures, and confidentiality of information received. State law generally also provides that compensation awards are not considered in bankruptcy proceedings and may not be taxed.

State law also generally sets out the source of funding for the compensation program—often a fine on criminal offenders. Some state compensation programs also administer a separate program to collect offender profits from crime, often called “notoriety-for-profit” programs.

RIGHT TO BE HEARD

Introduction

One of the most significant rights for crime victims is the right to be heard during critical criminal justice proceedings that affect their interests. Such participation is the primary means by which victims play a proactive role in the criminal justice process. When a crime victim is allowed to speak at the sentencing hearing, or to submit a victim impact statement regarding the impact of the offense on the victim and the victim’s family, there is an acknowledgment by the criminal justice system of the personal nature of the crime and of the harm suffered.

Conferral with Prosecutor

Several jurisdictions have adopted laws requiring the prosecutor to obtain the views of the victim before a disposition is final, whether this involves a plea agreement, dismissal of charges, or a pretrial diversion of the defendant. A few jurisdictions require the prosecutor to certify to the court that he or she has consulted the victim before a plea can be accepted.

Communication with the Court or other Authority

Most jurisdictions give victims the right to be heard by the court or another authority, such as the parole board, before major decisions are made. The most common stage for this during the criminal justice process is at sentencing.

Every state allows some form of victim impact information at sentencing. The majority of states require victim impact information to be included in the pre-sentence report and allow victim impact statements to be presented at the sentencing hearing. Generally, the law specifies that victim impact statements may be oral or written, but in several states the statement may also be submitted by videotape, audiotape, or other electronic means.

In general, victim impact statements may be given by the victim, homicide survivors, or the parent or guardian of a minor victim. Many states also authorize statements by a representative or family member of a victim who is physically incapacitated, however some limit such representative’s statements to cases where the incapacitation was the direct result of the crime.

Victim impact information usually describes the harm the offense has had on the victim, including descriptions of the financial, physical, psychological or emotional impact, harm to familial relationships, descriptions of any medical treatments or psychological services required by the victim or the victim's family as a result of the victimization, and the need for any restitution. State law might list the elements to be included in the statement, or it may simply permit a "description of the impact of the offense." In addition, many states allow the victim to state his or her opinion about the appropriate sentence.

In addition to allowing victim impact statements at sentencing, the majority of states also permit victim input at the parole hearing of the offender. In order to provide such input, the victim is usually required to maintain a current address on file with the parole board, the prosecutor's office, or some identified criminal justice agency. A vast majority of states allow victims to present a written or oral statement to the parole board for consideration at the parole hearing. A few states specifically authorize the use of audio or videotaped statements at the parole hearing.

Communication with the Defendant

Along with communicating to criminal justice officials, many states provide a victim the right to communicate with the defendant. This may take the form of a structured “victim-offender mediation” program, where a third party arranges a formal meeting between a victim or surviving family member and a convicted offender. Several jurisdictions also give victims the opportunity to serve on a victim impact panel to educate convicted offenders about the real-world impact of crime.

THE RIGHT TO BE INFORMED

Introduction

The criminal justice system is often required to provide general information of interest to victims. Most states also give victims or their families the right to be notified of important, scheduled criminal proceedings and the outcomes of those proceedings. They also notify victims when hearings have been canceled and rescheduled.

General Information Provided to Victims

The general information that criminal justice officials are often required to provide includes: notice of the availability of crime victim compensation; referrals to victim services, such as rape crisis centers, battered women’s shelters, and general victim service agencies; information about the steps involved in a criminal prosecution; and contact information for an individual within the criminal justice system.

In addition, victims may also have the right to be informed of various legal rights, including the rights to: attend a proceeding and/or submit a victim impact statement; sue the offender for money damages in the civil justice system; have a court order that they be protected from the offender and/or the offender's family and associates; and collect witness fees for their testimony, among others.

Notice of Events and Proceedings in the Criminal Justice Process

There are dozens of events or proceedings in the ordinary criminal justice process for which notice may be required by statute. These commonly include:

• Arrest of the accused;
• Arraignment of the defendant;
• Bail release and related proceedings;
• Pretrial release and related proceedings;
• Dismissal of charges;
• Negotiated pleas and entry of plea bargain;
• Trial dates and times;
• Sentencing hearings;
• Final sentence or disposition;
• Conditions of probation or parole;
• Post-trial relief proceedings;
• Appeals process and related proceedings;
• Parole release and related proceedings;
• Pardon/commutation of sentence and related proceedings;
• Cancelled and rescheduled proceedings;
• Final release from confinement, including from a mental institution; and
• Escape and subsequent recapture of offender.

Some of the notice requirements listed above have been more widely adopted by states than others. For example, nearly every state notifies victims of the trial date and time and the sentencing hearing. Fewer notify victims of the offender’s release on bail. Following conviction, most states notify victims of the offender’s parole hearing or parole release, but only a few notify victims of an offender’s pardon or commutation of sentence.

In addition to the events and proceedings most commonly addressed in state victim notification laws, some states notify victims of: the grand jury hearing; probation or parole revocation proceedings; the transfer of a convicted offender to an out-of-state prison facility; and the death of the offender.

Victim Notification Systems

Many laws that provide for victim notification also address the form of that notification. For example, laws regarding notification of bail release in some jurisdictions require immediate notice to the victim by telephone, while in others, “notification” may be limited to providing crime victims a telephone number to call to find out whether an arrested defendant has been released.

A number of jurisdictions have implemented automated victim notification systems to comply with their victim notification laws. Victims can call a toll-free number 24 hours a day to inquire about an offender’s status or register to be notified immediately of an offender’s release, escape, transfer, or court appearance. Once notification is triggered, the system will attempt to contact the victim at the number(s) provided and continue to do so for a designated period of time or until the victim answers the call.

THE RIGHT TO PROTECTION

Introduction

Many jurisdictions give crime victims the right to protection during the criminal justice process. This right may take the form of a generally stated right to protection, or may include specific protective measures. Most jurisdictions have defined criminal offenses of intimidation of victims or witnesses. Many provide that victims must be informed of protective procedures that are available.

Protective Measures

Measures to protect crime victims take various forms. Some examples include:

• Police escorts to and from court;
• Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
• Witness protection programs;
• Residence relocation; and
• Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.

Several jurisdictions have also enacted laws to make it easier for victims to participate in the criminal justice process. Some give victims the right to refuse or limit any interviews with defense attorneys. Others provide for special court arrangements for vulnerable victims, such as young children. These arrangements may include closed-circuit testimony from outside the courtroom, arranging the courtroom so the victim does not see the defendant, or closing the courtroom to the general public.

Employment Protection

Many states also provide a means to protect a victim’s job or economic status during the criminal justice process. This many include requiring the prosecutors’ office to intervene with employers or creditors on request, or prohibiting employers from firing or punishing a victim from taking time off to participate in the criminal justice process.

THE RIGHT TO RESTITUTION

Introduction

The term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.

Courts have the authority to order restitution by convicted offenders as part of their sentences.  In approximately one-third of states, courts are required to order restitution to victims in cases involving certain types of crimes, typically violent felony offenses. In many other states, if the court fails to order restitution, or orders restitution for only part of the victim’s losses, the court must state its reasons for doing so on the record. Payment of restitution is often a condition of probation or parole as well.

Not only can courts order restitution to the direct victim of a crime, they are often able to order restitution to the state victim compensation board, if that board has paid some of the victim’s expenses, or to a victim service agency that provided assistance to the victim.

Losses Covered

Restitution can cover any out-of-pocket losses directly relating to the crime, including:

• medical expenses;
• therapy costs; 
• prescription charges; 
• counseling costs; 
• lost wages; 
• expenses related to participating in the criminal justice process (such as travel costs and child care expenses); 
• lost or damaged property; 
• insurance deductibles; and
• other expenses that resulted directly from the crime. 

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonably expected future losses, such as ongoing medical or counseling expenses.

In calculating the restitution owed, a court will look at the victim’s losses. The court may also consider the defendant’s financial resources or other financial obligations, either in setting the total amount of restitution owed or when formulating a payment plan for the defendant.

C ollecting Restitution

Courts may order restitution to be paid immediately, or may set a payment plan. Often the court clerk is designated to receive payments, but where restitution is a condition of probation or parole, the probation or parole office may be responsible for collection.

Because a defendant may be ordered to pay various fines and fees, as well as restitution to one or more victims, a jurisdiction may set out a priority of payments. For example, the law may state that each payment received from a defendant is to be split among all the obligations, or that the restitution must be paid first, followed by fines and fees.

Many jurisdictions provide that restitution orders become civil judgments.  This expands the ability of victims to collect restitution and also means that the orders can remain in effect for many years, typically 10 to 20 years.  In many jurisdictions, civil judgments can be renewed, so they can stay in effect even longer.  Depending on the jurisdiction, the civil judgment may be enforceable immediately, or enforceable when the offender defaults on payment, or enforceable only after the criminal justice process is completed and the offender has been released from probation, prison, or parole. 

In some states, authorities are entitled to seize offenders' financial assets and property through garnishment and attachment to satisfy restitution orders. This authority may be granted immediately, or only after the defendant fails to pay as ordered.

When payment of restitution is a condition of probation or parole, probation or parole may be revoked if the defendant willfully fails to pay.

In those states with prison work programs, restitution payments are typically collected out of the wages of those programs.  Some states collect restitution from state income tax refunds, prisoner accounts, lottery winnings, or damage awards from lawsuits against the prison.  

Offender profits from crime

Many jurisdictions have laws that prohibit convicted offenders from making a profit from their crime. These are often called “notoriety-for-profit” laws. Under these laws, the offender is typically required to notify a state agency when he or she enters into a contract related to the crime. The state agency then freezes or holds the profit and notifies the victim. The victim has a certain amount of time to bring a civil suit against the offender.

RIGHT TO RETURN OF PROPERTY

A victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held as evidence.

All 50 states and the District of Columbia have passed laws outlining procedures for the return of stolen or personal property seized for evidentiary purposes in subsequent criminal proceedings.

In most states, property may be returned to its owner when it is no longer needed as evidence in a criminal prosecution. Since this often means the victim is deprived of his or her property for months or even years while the case is appealed or retried, some states have attempted to impose specific time requirements for the return of property.

A number of states have attempted to promote the prompt return of property needed as evidence by authorizing a photograph of the item to be serve as evidence.

THE RIGHT TO A SPEEDY TRIAL

A number of jurisdictions give crime victims the right to “a speedy trial” or “disposition of the case free from unreasonable delay.”

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances. “Continuances” are court-ordered delays of court proceedings. Many jurisdictions require that, in ruling on a continuance requested by a party, the court must also consider the impact of the delay on the victim.

In addition, several jurisdictions give priority to certain types of cases. They may require that cases involving children, or vulnerable elderly victims, be given preference in setting the court docket.

THE RIGHT TO ENFORCEMENT/REMEDIES OF VICTIMS

Introduction

Since crime victims have been afforded legal rights in every state, they also need ways to ensure that those rights are enforced.

Enforcement Mechanisms

A jurisdiction may promote the enforcement of victims’ rights through court proceedings. In a few jurisdictions, victims have “legal standing” to assert their rights. Because a crime victim is not a “party” to the case—that status is limited to the defendant and the prosecuting jurisdiction (such as the state)—legal standing for victims is not automatic but must be provided by statute or court ruling. In some jurisdictions, the victim does not have standing, but the prosecutor or some other official has the authority to seek court enforcement of the victim’s rights.

Aside from general “standing” to assert rights, some jurisdictions have other limited court options for enforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency to comply with the law, or allow other limited actions.

Several states have created a designated entity to receive, investigate, and attempt to resolve crime victim complaints. In some states, this may be an ombudsman or state victim advocate; in others, it may be a committee or board. Experience in those states has shown that the majority of calls from crime victims are resolved by providing information or referrals. However, many go on to the formal complaint and investigation stages. Some states also give the investigatory agency the ability to impose consequences on offending agencies or officials found to have violated a victim’s rights.

Limitations on Enforcement

Many victims’ bills of rights state that violation of a right does not create a civil cause of action against any government agency or official. Also, most specifically provide that a failure to provide a right to a victim cannot be raised by a defendant as a ground for appeal.

Disclaimer

This information is provided as a general overview of crime victims’ rights, which vary in scope and strength across the state, tribal, and federal criminal justice systems. It is not intended to serve as legal advice or statutory interpretation for any given jurisdiction.

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