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It\u27s Finally Time for A National Data Privacy Law: A Discussion of the American Data Privacy And Protection Act (ADPPA)
Get PDFMillions of Americans face unprecedented privacy risks related to their data, often without their awareness. With the increasing value of consumer data and its growing utilization by businesses, there is a growing demand for greater transparency and privacy protections. As of 2023, no comprehensive federal law governs data privacy in the United States, leaving citizens with limited protections. Introduced to Congress on June 21, 2022, the American Data and Privacy Protection Act (ADPPA) successfully passed the House of Representatives Committee on Energy and Commerce, making it the furthest a national comprehensive data privacy bill has progressed through the federal legislative process compared to any other proposed bill. This Note discusses the ADPPA, specifically its notable features and the changes it has seen in Congress. This Note then provides a comparative analysis of other modern data privacy laws, such as the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR). Furthermore, this Note reviews the implications of the ADPPA on businesses and consumers if it is signed into law. Finally, this Note concludes by proposing solutions lawmakers could consider to mitigate criticisms the bill has received
Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law
Get PDFIn New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. The Court did so by applying a “historical tradition” approach to determine the scope of Second Amendment protection. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.” At first glance, the historical tradition approach may seem objective and easier than an empirical analysis of gun restrictions and their impacts. These first impressions are mistaken. In fact, the historical tradition approach presents significant challenges for attorneys and judges—challenges that the Bruen Court minimizes. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. Indeed, within the Bruen opinion itself there are multiple examples of shoddy historical analysis and inconsistent approaches to historic evidence, all aiming to achieve a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases
SEC v. Panuwat: The Federal Pursuit of Shadow Trading
Get PDFIn 2021, the SEC filed a complaint against a biopharmaceutical executive, Matthew Panuwat, for trading on material non-public information in violation of both the federal securities laws and his employer’s company policies. However, because the subject of the confidential information was not his employer, but a similarly situated peer company, Panuwat’s conduct constitutes “shadow trading.” The SEC’s enforcement, and the Northern District of California’s subsequent approval, indicate that company insiders may face liability for shadow trading. However, as written, the SEC arguably bases its attachment of federal liability on the company policies that Panuwat was bound by and violated. This Note argues that such enforcement of company policies should be avoided by drawing parallels to Van Buren v. United States. Instead, shadow trading should be pursued via misappropriation theory, breaches of company policies should be treated as breaches of contract, and companies should enact effective compliance programs
“Moral Conviction” plus “Joint Sanctions”: The Judgment-defaulter Blacklist System in China
Get PDFAlthough there has been literature generally discussing China’s social credit system, little research carefully examines the nature and logic of the judgment-defaulter blacklist system, from which the broader blacklist system under the social credit system originated. This article reveals that China’s judgment-defaulter blacklist system pragmatically utilizes a strategic combination of “moral conviction” and “joint sanctions” to remedy the failure of the judiciary to perform its duty of judgment enforcement and the ineffectiveness of the legal approaches to enhancing judgment enforcement. The judgment-defaulter blacklist system runs parallel to the existing legal system and will likely impose double punishment on discredited judgment defaulters. Moreover, the joint sanction mechanism, by applying ancient China’s Legalism theory of “A chaotic society calls for heavy penalties,” has violated a number of fundamental legal principles that contemporary Chinese law embraces, thus casting doubt on the legality, reasonableness and due process of the joint sanctions imposed on discredited judgment defaulters. The broader blacklist system under the social credit system is subject to the same criticisms. Given the increasing application of the blacklist system, the role of the Chinese legal system might be diluted significantly. Since the Chinese national legislature is deliberating the draft of the Civil Compulsory Enforcement Law, this article argues that the joint sanction mechanism against discredited judgment defaulters should be abolished, and all credit-related restrictions and sanctions on them and a broader range of discredited parties must be imposed in compliance with the rule of law
Maritime Collision Regulations as a Structure for Space Travel
Get PDFThe exploration of space via manned and unmanned missions has been almost constant since the mid-20th century. With developing technology and the advent of private actors in space travel, the emerging problem of space traffic requires some form of guidelines in order to prevent collisions and continue the peaceful use of space. Space Traffic Management is an emerging field with new theories still being posited. This Note examines the ways in which maritime Collision Regulations (COLREGs) can be used as a guideline to create infrastructure for the control of traffic in space, regarding both satellites and general space debris. This Note argues that COLREGs are the most easily transposable earthbound regulations to adopt in future space traffic legislation
State of Delay: Are Outdated Capital Post-Conviction Defense Tactics Undermining Effectiveness and the Attorney-Client Relationship?
Get PDFIn 2018, death row prisoner Scott Allen was ordered to undergo a psychiatric evaluation to determine whether he was competent enough to fire his appointed attorneys. The competency hearing was not ordered by Scott’s counsel; rather, a superior court judge did so at the behest of an undisclosed third party. The problem was that Scott Allen had no history or symptoms of an intellectual disability or mental illness, nor was either a mitigatory claim in his appeal. The attorney-client conflict was triggered by Scott’s pro se effort to remove counsel after they ignored his lawful instructions to include potentially exculpatory evidence in an appellate brief. Exclusion of such information in the brief at the state level would find it procedurally barred in a federal habeas petition. This danger was reinforced by the U.S. Supreme Court’s conservative majority ruling in Shinn v. Ramirez. The Court held that defendants bear responsibility for all attorney errors and cannot depend on federal courts to be fact finders when new evidence that should have been presented in state courts is raised in a habeas petition. This procedural bar prevents raising a claim of ineffective assistance of post-conviction counsel, creating a circumstance where defendants must be a check against less than diligent attorneys. When capital defendants pursue due process in the course of their appeals, they often contend with attorneys who are only interested in their own agendas and defense strategies, interference from third parties that support defense counsel but not necessarily the interests of the defendant, federal courts hamstrung by Supreme Court rulings, and the “otherism” taught to attorneys in the 2003 American Bar Association ethical guidelines. Through this quagmire, capital defendants gamble life and freedom on the ability of their attorneys to avoid errors and pursue client interests. It is through this legal nightmare those who seek to overturn wrongful convictions must fight the status quo of delay
Defendants in the Dark: How the Jencks Act is Incompatible with the Adversarial Legal System
Get PDFThe Jencks Act is a McCarthy Era law that prohibits compelling the disclosure of any statement made by a government witness in a federal criminal prosecution until after the witness has testified at trial. Passed in 1957 in response to the Supreme Court’s decision in Jencks v. United States, the Act’s life in Congress was “nasty, brutish, and short.” In prosecuting its anti-communist “witch hunts” of the era, the government strove to keep hidden as much of its case against those accused as possible. Against this backdrop of the desire for secrecy, the Supreme Court held that a criminal defendant was entitled to the disclosure of statements made by government witnesses so as to allow him to assess their value to his defense. Jencks caused widespread fear that too much insight into the government’s criminal investigations and prosecutions would be given to criminal defendants. Opponents of the decision saw it as pouring gasoline into an inferno already blazing throughout the nation as a result of the perceived threat of communism. In this atmosphere of fear and paranoia, Congress changed the rule announced by the Supreme Court, at the very last minute of a particularly arduous congressional session, without following critical legislative practices, and without the advice of bench or bar. In allowing the government to withhold statements made by its witnesses until after those witnesses have testified at trial, the Jencks Act is inimical to the adversarial system of justice. Criminal jurisprudence in the United States emerged and subsequently evolved with the understanding that the fairest and most effective way of determining truth is to subject the parties’ claims to the crucible of an adversarial trial. The foundation of this concept is cross-examination—so indispensable to a fair trial as to be enshrined in the Sixth Amendment’s right to confrontation. By design, the Jencks Act frustrates the defendant’s ability to conduct cross-examination by allowing the government to withhold statements made by its witnesses. Other principal sources of discovery, primarily Federal Rule of Criminal Procedure 16, along with rules derived from Brady v. Maryland and Giglio v. United States, manifest the general consensus that expansive disclosure of evidence promotes fairness in trials. Nothing illustrates this consensus clearer than the far more liberal discovery practices in civil cases. Yet the Jencks Act denies the defendant in a criminal case, where the stakes are often far higher, the opportunity to discover aspects of the government’s evidence that are crucial to the case against him. The prejudice to defendants that the Act creates is innate in its very conception and infects every criminal case in the federal courts. This Note therefore argues that the Jencks Act must be repealed. Government witness statements should be included in the government’s general pretrial discovery. The justifications behind the Act’s passage, and the arguments for narrow discovery in general, cannot sustain the Act’s blatant disregard for defendants’ right to a fair trial
