Illinois Business Law Journal

Michael Nifong Files for Bankruptcy: Buys Some Time and Maybe More

     Michael Nifong, the former North Carolina prosecutor made controversially famous for his rape accusations against several lacrosse players from the University of Duke, has filed for bankruptcy. [1] After resigning and being disbarred, the former D.A. filed for a Chapter 7 bankruptcy, listing liabilities in excess of 180 million dollars. [2]

Release the Hounds: NY Attorney General's Office Pursues Wall Street (Again)

    As common as it is to find thin greasy pizza in Brooklyn, it is just as common to hear that the New York Attorney General's office is launching a zealous high-profile prosecution of Wall Street. One need only whisper the name "Spitzer" in lower Manhattan to receive a response of colorful epithets and conjure up a regime that has been described as, "the most egregious and unacceptable form of intimidation we've seen in this country in modern times."[1] That is quite a statement considering some of the actions undertaken by the U.S. Justice Department in recent years. However, Mr. Spitzer is safely ensconced in the N.Y. Governor's office; are not the days of feasting on Wall Street over? Not so fast, this past week current Attorney General Andrew Cuomo's office indicated it will pursue firms suspected of "mortgage abuses" linked to the national subprime mortgage fiasco.[2] This article will explore the legal and substantive basis of the AG's interest in these Wall Street firms.

Outsourcing Pregnancy?

I. Outsourcing

It makes good business sense to outsource operations.  It cuts down on costs, delivers lower prices to consumers, and brings job opportunities to poorer countries.  So why not also outsource pregnancy?  India, already known as an outsourcing base, is also the growing center for surrogate pregnancy.  India is hardly restricted through legislation, as there are no laws that govern surrogacy.[1]   No part of the fertility industry is regulated, although the Indian Medical Council does issue nonbinding guidelines for involved parties.[2]

Since 2002, commercial surrogacy has been legal in India.[3]  The only laws that India currently has in place concerning women and their infants address maternity leave and breastfeeding.[4]  There is proposed legislation to help regulate surrogate pregnancy, but the government has been slow to act.[5]  Already, outsourcing surrogate pregnancy, or “reproductive tourism” has become a booming business of over 445 million dollars a year.[6]

eLawyering and the Unauthorized Practice of Law

          The legal profession has been criticized for not keeping up with technological advances [1], arguably leading to less efficiency in the practice of law.  Websites like LegalZoom.com and LegalAdviceLine.com are at the cutting edge of changing that. [2]  While most law firms, especially those in large cities, have basic websites outlining the firm’s area(s) of expertise, displaying recent press releases, and even giving biographies of the attorneys in order to attract more business, some legal web pages have taken a more interactive approach. [3]  These interactive websites offer a variety of “do-it-yourself” services, from answering specific legal questions, to incorporating a new business, to quickly producing documents such as basic contracts and wills at a fraction of the cost of obtaining a lawyer’s services. [4]  While the thought of saving money on attorneys fees may initially seem attractive, and even though these websites are generally used for very basic legal needs, online legal aid may cross the line between self-help and the unauthorized practice of law. [5]  The following article will discuss the inherent costs and benefits of having this form of legal advice available.

Careful Where You Click: End User License Agreements Contain Information You Need To Know

How many people actually read the "fine print" of product license agreements before opening a new software package or deploying the radio button next to "I Agree" and going about their business? Doing so on a regular basis before unwrapping new acquisitions or utilizing new software would be prudent for anyone, even when downloading seemingly innocuous shareware or dealing with well-established and renowned corporations such as Microsoft. Although courts have recently started to relax their strict enforcement of these End User License Agreements ("EULA") or Software Agreements, for the most part people are still bound to abide by the terms to which they so quickly and thoughtlessly acquiesce.

Securities and Exchange Commission: Transforming Rule 14a-8 To Allow Shareholders Increased Voting Power

I. Background

While the decision of the Second Circuit Court of Appeals binds many public companies of that specific jurisdiction, the SEC must now decide whether to propose a clarifying change to Rule 14a-8(i)(8) ("the Rule"), binding all companies subject to Federal Securities Law and alleviating courts of difficult interpretation. A letter from shareholders to the Honorable Christopher Cox, requesting a return to the pre-1990 interpretation of the Rule, stressed an important distinction: ". . . between using a shareholder resolution as a back-door device to contest a specific election and using a shareholder resolution in order to change the rules for election so as to further the long-term interests of shareholders."[1] It is this distinction which also divides the opinions of Stephen Bainbridge, Margaret Blair and Lynn Stout on one side from those of Lucian Bebchuk. Bainbridge, Blair and Stout espouse theories such as "director primacy" and hold views opposing the shareholder primacy norm.[2] Their views appear to coincide with a decision against shareholder resolutions as a means to undermine a board’s power through elections. Their views appear to greatly differ from those of Bebchuk’s, who proposes allowing shareholders to alter "rules-of-the-game" decisions or else elect a new team of directors who will.[3] This report will use Bainbridge, Blair and Stout’s theories in support of an amendment seeking to expand the rule’s exclusions regarding shareholder proposals to limit shareholders’ input dealing with elections in general, while Bebchuk’s theories will be relied upon to amend the Rule in order to empower shareholders.[4] This assumption arises primarily from a grand simplification of both groups’ views: "director primacy" v. "shareholder primacy norm," respectively and this report will utilize their theories to weigh the arguments in favor and in opposition to an amendment.

Multidisciplinary Practices: Unethical or Inevitable?

I. Introduction

Multidisciplinary practices, or MDPs, have long been the subject of acrimonious debate between two opposing campaigns, each citing passionate reasons for why the organizational structure should be formally established or definitively barred. [1]  Multidisciplinary practice refers to a professional entity in which lawyers partner with non-lawyers to provide a mix of legal and non-legal services.  Efficiency and innovation by this new structure is dampened with fears of conflicts of interest and dilution of privilege.   The crucial question as acerbically couched by one scholar has been “whether client and public interests are best served by ethics rules that preclude innovation in joint service delivery enterprises among lawyers and other professionals.” [2]

Spring Publication Starting Soon!

We are back from our winter break and will be starting our spring publication cycles on February 4, 2008.  Please check back often as our content will be updated each weekday. 

We would also like to congratulate our newly appointed editors:  Joseph Krcmar, Yoo Jin Jung, Scott Wilson, and Patrick Schuette!

The Format Wars

I. The Phantom Menace for Consumers

High Definition Television (HDTV) was first demonstrated to the public in 1969 and made commercially available in the mid-1990s.[1] However, upon being made commercially available, HDTV created a problem for consumers who wished to record and watch movies. In 1998, more than 90% of households in the United States had a videocassette recorder (VCR).[2] At the time, most of those VCRs recorded in an analog format, rather than in a digital format.[3] Analog media formats have lower image and sound qualities than digital media formats.[4] While consumers would be able to watch videocassettes on their HDTVs, they would not be utilizing the high definition technology to its fullest. A digital media format needed to come into the marketplace that could cheaply and effectively record and play high definition programming. However, instead of one format establishing itself, two formats have fought to become the next established standard.  This article will examine how these formats have developed and progressed, the legal problems that have arisen out of the conflict between these two formats, and what this conflict might mean for consumers.

Following the LEEDer: What Attorneys Should Know About Green Building

Green building is gaining momentum as a construction trend with widespread benefits, from environmental efficiency and resource conservation to human health and lifestyle improvement.  Several government entities have reacted to the green building movement, creating national and local standards and monetary incentives for developers to create green buildings.  In representing developers and others associated with green building, attorneys should consider how to contractually plan for risks that may not otherwise arise in ordinary development projects.

Abandoned Software

Piracy, the copying and distribution of software without permission from the copyright holder, is a major concern for those involved in the IT industry.  Losses due to software piracy have been estimated at 33 billion dollars per year, [1] although other groups claim these estimates are too high. [2]  Most piracy consists of downloading software for free, instead of paying retail price.  However, there is a small subset of software piracy that falls into a grey area of the copyright law.  Older software works enjoy copyright protection.  But unlike a copy of Microsoft Windows or Halo 3, in some cases it is unclear who owns the copyright on the software.  Furthermore, a lot of old software, especially video games, is unavailable at retail.  And unlike books, music, or movies, old games are stored on easily damaged, decayable media, such as floppy disk.  Given the underlying goal of copyright to deliver works into the public domain after giving the author a period of protection, there is value in preserving "abandonware".  Unfortunately, the current law of copyright does not adequately balance the two goals of intellectual property in the United States.

Homeowners’ Associations & Their Limitations on Free Speech

I. Introduction

Free speech is a right guaranteed by the First Amendment, but is it possible to give up this right if you move into a neighborhood governed by a homeowners’ association? The New Jersey Supreme Court had to decide this issue when a group of residents subject to the rules of their homeowners’ association were restricted from posting signs on their lawns or the common areas of the community. [1] Although the ruling is limited to application in New Jersey, homeowners’ associations everywhere were watching the case closely to see whether it would have an impact on how their state dealt with such constitutional challenges to their rules and regulations. [2] This article will explore the outcome of the New Jersey case as well as its implications on homeowners’ associations elsewhere.

FMRI and DNA Gene Sequence Mapping Provide Promising Technologies with an Orwellian [1] Price Tag

I. Introduction

Functional Magnetic Resonance Imaging (FMRI) and DNA sequence mapping provide technologies that offer society unprecedented benefits, but at a cost that we are only beginning to understand.  [2]  FMRI, for example, enables researchers to map the brain's neurons as they process thoughts, sensations, memories and motor commands. [3] This provides neurologists with the ability to detect early onset of Alzheimer's disease and other ailments without invasive surgery.  [4]  It also can be used as a next generation lie detector in that it provides an almost infallible insight into a person's thought process that detects deception, raising obvious concerns about our civil liberties and right to privacy.  [5] 

DNA sequence screening, on the other hand, involves the study of genes and the notion that they are determinative of an individual's behavior, character, and future medical problems.  [6]  Diseases such as Crohn's disease, night blindness, Lupus, and emphysema  and their associated genes are already patented [7], making genes a highly lucrative business commodity. [8]  However, should there be property rights associated with genes?  In the wrong hands, these potentially altruistic technologies may create an Orwellian society where the government and/or large corporations may legally infringe on our traditional notions of civil liberties in the pursuit of capitalist ends.  [9]  Where should we draw the line?

SEC’s recent report on Executive Compensation Disclosure

INTRODUCTION

On this October, the Securities and Exchange Commission published observations from its review of the executive compensation disclosures from 350 public companies that were filed during the latest proxy season.[1] This report is very important for both companies and public because it is the first SEC’s review for how well companies were adapting to the significant revisions to the executive compensation disclosure rules that took effect last year.[2]

Google's Book Search Library Project Faces Copyright Challenges

I. Introduction

Google’s stated mission is “to organize the world’s information and make it universally accessible and useful.”  [1]  As part of that mission, the Google Book Search Library Project is scanning and organizing printed books from dozens of libraries. By digitizing these books and making them available online, the Google Book Project will potentially benefit academic research around the world by increasing accessibility to rare and remote volumes. Google plans to make its entire digital library searchable as part of its primary search engine, reaping profits from its current advertisement structure. However, the Project has drawn opposition from some publishers, librarians and academics for a variety of reasons, including threats to copyright, scan quality and search biases.