China’s Entrepreneurs

In the United States there is a wide array of views regarding the rise of China as an economic and military power, and oftentimes there seems to be great concern with the thought that China may one day surpass the United States as the dominant world power. However, closer examination of the People’s Republic of China suggests that the country still has a long road ahead of it in its development. Many of these issues are born out of the fact that the Communist Party of China often stifles opportunities for entrepreneurship and encouraging wealthy Chinese people to invest back into their own communities. One of the biggest challenges that entrepreneurs and new businesses face in China is the fact that the Chinese government is very concerned with ensuring “internal societal stability”, and focusing a tremendous amount of its resources on surveillance and centralized control.

Two examples of this can be seen in the way that the Chinese government monitors internet activity, and recent efforts to implement a “social credit” system within the country. Furthermore, attempting to go into business with foreigners and with foreign companies is further complicated by the “51-49” Rule which mandates that a Chinese company or Chinese national must retain a minimum %51 majority share of the business. A consequence of these policies is the fact that many Chinese entrepreneurs are leaving the country and seeking opportunities in places in the United States and Europe. These policies also work to discourage foreign investment that is independent of working with the Chinese government. Additionally, the attitudes of wealthy Chinese people have become more negative and pessimistic about the future of Chinese economic growth as well as the government’s capacity to change. Many of China’s elite have been more outspoken about their reservations with the direction of the CCP’s policies and have even gone as far to suggest that China runs the risk of becoming like countries in central Asia where the government eats into the profits of businesses while ruling with an iron fist. Ultimately, only time will tell how the aforementioned policies will impact Chinese businesses and foreign investment, and whether or not the CCP will adapt their policies and become more accommodating.

Questions to consider:

  • How can the United States learn from China’s mistakes? What types of policies discourage entrepreneurial momentum/undermine the confidence of investors and entrepreneurs?
  • What drives the current attitudes in the United States about China’s growth and development?

Closer to Federal Laws on Privacy?: Facial Recognition Technology

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Technology is based on making tasks we do everyday more convenient. New technology that has been taking companies by storm is the use of Facial Recognition Technology (“FRT”). Right now there is little law on point that directly addresses the dangers that may come with FRT. Many experts state that FRT involves greater dangers than other biometric authentication: the technology and database already exist (e.g. drivers license databases vs. no fingerprint in database unless crimes are committed); faceprints are easier to collect without consent from afar; constitutional issues; racial biases both intentional and unintentional. Because of the lack of federal law, some large tech companies have called the country to take notice and called for federal legislators to take action. Certain members of Congress have asked for a hearing and some have also asked for a GAO report on the technology. It is unclear whether these cries are aware of the 2015 GAO report on the technology or they are asking for an update given how quickly technology changes.

Currently, privacy law protects the public by a means of self-management, meaning consumers are responsible to protect themselves for any contracts that implicate privacy. On top of that, some states have law protecting citizens only from private companies from misusing biometric data: Texas, Washington, Illinois. All of these statutes follow a notice and consent model.

The movement of concern comes likely as a response to Facebook’s suit under Illinois’ BIPA (Biometric Information Protection Act) law. Illinois law is considered the most robust law protecting an individual’s right to his/her own biometric data. Three cases main cases have come under the Act: Rosenbach v. Six Flags Entertainment Corp., 2017 Ill. App. 2d 170317 (2017), rev’d, 2019 IL 123186 (2019), Rivera v. Google Inc., 238 F. Supp. 3d 1088 (N.D. Ill. 2017), and In re Facebook Biometric Information Privacy Litigation, 185 F. Supp. 3d 1155 (N.D. Cal. 2016). In Rosenbach, the court concluded that a BIPA plaintiff is required to do more than allege a technical violation of the Act, and that a defendant’s failure to provide notice or obtain consent before collecting biometric data is not enough to meet BIPA’s “aggrieved by” standard. However, just recently the Supreme Court of Illinois overturned that decision. After lengthy analysis of statutory interpretation, the court ultimately held that suffering actual damage is not necessary for a plaintiff to qualify as aggrieved. Further stating that the appellate court’s prior holding that the violation of the law was merely technical in nature misunderstands the purpose of the legislation and the harm the law seeks to prevent. This brings the case further in line with In re Facebook Biometric Information Privacy Litigation & Gullen v. Facebook Inc. where the court held that BIPA codifies a right of privacy with regard to personal biometric information, and that a violation of that right is sufficient for a cause of action under BIPA. In Rivera, the court held that the BIPA does not dictate how biometric measurements must be obtained and thus defendant’s motion to dismiss was denied.

These cases, especially the reversal of Rosenbach, shows that these privacy matters are being more and more valued. A simple technological violation is sufficient as a harm. However, it is still unclear how the Federal Government aims to resolve privacy law issues in protecting biometric data and if the notice and consent model that states are using is sufficient to protect interests.

Questions to consider:

  1. Is facial recognition truly different from other biometric authentications?
  2. Is federal legislation necessary to protect the public or is state law sufficient?
  3. Does the public truly care about their privacy? There is great debate on how much we care about our privacy given our presence on social media and lack of reading the terms and conditions our uses of these websites is governed by.


Relevant links:

“As Concerns Over Facial Recognition Grow, Members Of Congress Are Considering Their Next Move” –

“Data Privacy Legislation Is Coming for Big Tech” –

“Facial Recognition Is the Perfect Tool for Oppression” –

Microsoft: “Facial recognition: It’s time for action” –

Amazon: “Some Thoughts on Facial Recognition Legislation” –

GAO Report on FRT –



Jack of All Trades? Or Master of None?


Are companies trying to do too much these days?  Consider Amazon and Instagram.  Both platforms have relatively recently expanded their offerings with new shopping features.

After testing the service on Prime customers, Amazon rolled out Amazon Prime Wardrobe to all of its U.S. customers this year.  Touted as “try before you buy,” the service enables users to choose between three and eight items to test out at home.  A Prime member simply keeps what he or she wishes, sends back the other items, and is charged solely for those items that he or she keeps.  By offering this service, Amazon is competing with the likes of Stitch Fix and Trunk Club. Amazon seemingly aims to differentiate itself by focusing on fit and by appealing to both male and female audiences.

Additionally, post-purchase of Whole Foods, Amazon has also entered the “grocery-shopping and delivery” market.  For interesting insights into Amazon’s most recent offering, see Wall Street Journal article: “Amazon to Whole Foods Online Delivery Customers: We’re Out of Celery, How’s Kale?”  In particular, this article highlights some of the issues Amazon and Whole Foods are facing (i.e. outdated tracking technology and “suitable replacements for out-of-stock items”).

Like Amazon, Instagram has also ventured into the shopping space.  Last week, it launched a new feature: “in-app checkout for its shoppable posts.”  With this new feature, “users will be able to click on an item featured in a post, see the price, and then click again to bring up an order form.”  As noted by the WIRED article, “[b]y streamlining the process of purchasing things within its mobile app, Instagram hopes to become your own personalized digital mall.”  Ultimately, Instagram could collect a pretty penny for this new (and eventual) for-fee service.


Questions to Consider:

  1. Are Amazon and Instagram trying to do too much?  Are these additional services/offerings natural expansions that enable companies like Amazon and Instagram to capitalize on their infrastructure? Or should they stick to their bread and butter?
  2. As we have discussed in class, the law tends to follow last. What legal issues could follow from Amazon’s and Instagram’s new offerings?
  3. Though not necessarily in the traditional sense, are Amazon and Instagram entrepreneurs in disguise (i.e. large companies acting entrepreneurially)?
  4. What’s the verdict? Are these new ventures likely to sink or swim?


Amazon Sources:


Instagram Sources:


Onward to Victory


The nexus of legal and entrepreneurial considerations is an increasing institutional focus but one that has always been present in the function of society. Dean G. Marcus Cole, the incoming eleventh Dean of Notre Dame Law School, has underscored this concept when describing the origin of his motivation to practice law. As a lawyer, he hoped to assist local entrepreneurs in launching small businesses to further the development of the low-income community in which he was raised. Dean Cole aims for the law school not to rely on antiquated practice but to instill law students with entrepreneurial ingenuity and responsiveness to an evolving legal landscape.

Notre Dame prides itself on cultivating a different kind of lawyer but this philosophy could be construed as an implicit statement about the impression many have with respect to the current practice of law. Perception is largely based on personal experience and countless individuals have had negative interactions with legal counsel in the early stages of formation. However, there are those who have persisted to succeed. Stephen M. Griesemer is a Notre Dame Law School graduate who left his practice at a leading global law firm to help run his family’s business in Missouri. After returning to legal practice, he then left again to form a thriving private equity firm in Chicago. He maintains a close relationship with the university and continues to guide students to think beyond the functional aspects of the challenges they are presented with in corporate representation. Understanding the value of this perspective has the potential to create significant opportunities.

The fortitude required in executing a venture often derives from more than knowledge but a passion to see a vision realized. Michael L. Cioffi, a Notre Dame alum and partner at an international law firm, has specifically cited this desire as the driving force behind the creation of Monteverdi in the Val d’Orcia. More than a boutique hotel and potential revenue stream, he sought to restore a place that would honor the purpose and heritage of the region. It took years to develop but Monteverdi now flourishes with an Artists and Scholars in Residence program and the shining village on a hill he envisioned has come to fruition.


Does the Law Do Enough to Protect Innovators?

In this era of innovation, most of us are used to seeing disruptive businesses entering the market. What’s interesting to follow is how quickly after a new model shows some success, a competitor quickly launches a similar model and tries to dominate the space. As a recent example, the latest IPO news coming from Uber and Lyft remind us of how these disruptive companies are often reaching their milestones at a similar pace.

There are two companies with similar business models that are currently in court trying to defend the uniqueness of their brand. Regus and WeWork are two industry innovators that have created alternatives to traditional office space. Regus is the earlier version, and it offers office space that looks more like a typical office. WeWork has developed a collaborative workplace with features not found in conventional offices. Both services provide flexible payment options not available in standard office leases. Clients can choose a package of office essentials based on their individual needs for things like conference rooms, secretarial services, and printing. The companies share the same disruptive model, with WeWork adding a new layer.

Recently, WeWork created a new model of its product geared to midsized companies and called it HQ by WeWork. Regus owned a subsidiary called HQ Global Workplaces and sued WeWork for trademark violations.

The case is primarily a trademark case, but I believe the underlying factor is that WeWork has borrowed Regus’ business model. Regus has no way to stop them from using their idea. They can only interfere if WeWork violates an IP right as they claim happened here. This example might not bother us much considering the trendy WeWork model looks very different than the corporate Regus model, but it got me thinking about whether we offer protection for entrepreneurs who create new business models.

A different example that I came across recently is in eyewear products. Warby Parker was a disruptive idea in an industry which was ripe for innovation. Warby Parker offers customers the option to try on a selection of sample frames before ordering a pair from their site. To do this, they figured out what materials ship well, what type of packaging works and what kind of selection works well with for their system. I discovered recently two sites, Jonas Paul and Pair Eyewear, that sell children’s glasses and have each been described as the “Warby Parker” of kids’ glasses. They are both run by entrepreneurs with interesting and compelling backstories and products. Both are held up as models of entrepreneurialism. They also, both borrow heavily from Warby Parkers model of shipping out sample frames. Pair Eyewear even hired a former Warber Parker exec to help them get their business going. Warby Parker has no legal claim as far as I know, but should they?

Entrepreneurs have been described in the readings as people who continuously tinker with an idea to make it work best.  What should happen when that idea is a product of another entrepreneur’s creative business model? Should the law offer the first entrepreneur ownership of their innovative solution, or should it be free and open for all to use?