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The Constitutional Imagination of the Mujahidin: A History and Translation of Two Constitutions Proposed by Afghan Islamist Militias in the 1990s
Get PDFPrivacy And National Politics: Fingerprint and DNA Litigation in Japan And the United States Compared
Get PDFDrawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court followed the path of fingerprint law. In other words, what is striking in fingerprint and DNA cases in the United States is not doctrinal flip flop, but doctrinal continuity-despite the change of regimes and dominant parties.
Second, the phenomenon of doctrinal lock-in demands reframing the concept of national politics. This Article proposes to redefine national politics as the interaction between the establishment (the regime) and external challenge. The doctrinal lock-in reveals the limited ability or willingness of the establishment to take up the question of privacy in the political process thus respond to the demands from society at large. To illuminate this point, a comparison with a multiparty democracy can be helpful. Conventional comparative law on privacy focus on Continental Europe. However, this Article chooses Japan, an even better example for this purpose because Japan\u27s judiciary is well known for being conservative or weak. In Japan, the notion of privacy came much later than that in the United States-it was established in 1964 by a Tokyo District Court ruling. However, in the 1970s and 1980s, privacy was transformed from a tort law to a constitutional issue. While the transformation was driven by a broad and general constitutional awakening in the Japanese society, privacy became more politically charged when fingerprint became the focal point of agitation in the fingerprinting refusal movement. The movement was spearheaded by the Zainichi Koreans who fought for constitutional recognition of privacy in fingerprints. Litigants were joined by lawyers and bar associations who helped frame their arguments, support groups and journalists who gave voice to their perspectives, as well as historians who dig out the secret connection of fingerprint with Japan\u27s colonial past. The refusal movement became Japan\u27s civil rights movement. In this context, the Supreme Court of Japan recognized fingerprint privacy as a constitutionally protected right in 1995. More recently, a Nagoya district court ruled in favor of a plaintiff who requested police to expunge his fingerprint and DNA data after acquittal. This was an unprecedented ruling in Japan\u27s history. No doubt that the Nagoya ruling is an outlier, but it shows that courts in Japan, under certain conditions, are responsive to social demands, and in doing so, they are open to the high level of protection of privacy on par with European standards.
Third, the contrast between the judicial lock-in in the United States and the responsive courts in Japan begs explanations that go beyond the Balkin-Levinson framework. Further studies are needed to understand why the United States is lagging behind in responding to privacy compared with other Western democracies. This Article aims to contribute to this inquiry by proposing a tentative hypothesis in the relationship between national politics and privacy: in Japan, when privacy becomes political, it creates pressure on the establishment, thus forces the judiciary-however conservative it is-to accommodate social demands in order to maintain public trust. By contrast, in the United States, when none of the political parties is willing to take up privacy, privacy remains apolitical, leaving the judiciary shielded from the pressure from society at large
Taxes, Administrative Law, and Agency Expertise: Questioning the Orthodoxy
Get PDFOne of the foundations of administrative law is that federal agencies and their employees are experts in their respective fields. In addition, the many judgments and decisions made by these experts are based on a thorough record after extensive factfinding. As a result, so the theory goes, courts, particularly courts of general jurisdiction like the United States District Courts, should give deference to the determinations made by these experts. But what if the facts underpinning this foundation are not true in all cases? Should courts nevertheless provide deference to decisions by agencies when it is evident that an agency\u27s determinations are not based on a thorough record and that the factfinding is inherently suspect? Should courts, particularly specialty courts like the United States Tax Court, defer to judgments of Service personnel that are no more expert than the judges who review the cases?
This Article challenges traditional notions of administrative law in the context of certain tax cases known as innocent spouse. These cases, which are first heard by the Service, involve many of the most vulnerable taxpayers-most of whom are low-income, are women, and many of whom are victims of domestic violence. The Service must decide whether to provide relief from a tax debt if the taxpayer meets certain criteria, including issues like whether it would be equitable to hold requesting taxpayers liable, whether the taxpayers have credibly made their case, whether the taxpayer was subject to abuse, and whether one or both parties committed fraud. These are very fact-intensive inquiries that require a thorough development of the facts through a hearing and document gathering. And yet, under current practices, the Service does very little fact finding, and it never holds in-person hearings. As a result, the determinations made by the Service in these cases are not based on a thorough record, and the justification for decisions is often conclusory with little to no analysis. Therefore, these determinations are not entitled to deference, and the United State Tax Court, which has jurisdiction to review the Service\u27s determinations, should be allowed to conduct a full hearing to make its own independent determination.
This Article also advocates for substantial changes in the procedures by which innocent spouse cases are heard and decided by the Service. The system should not rely on judicial oversight and review to protect the rights of taxpayers. The Service should change its procedures to ensure that taxpayers are given a full and fair hearing and that decisions by Service personnel are made based upon all relevant evidence. Only then will there be a chance that the rights of taxpayers are adequately protected
Trademarks and Censorship in the Time of COVID-19
Get PDFDuring the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and the economy. This Article argues that as the pandemic hastens China\u27s replacing the United States as the number one economic power by 2028, China\u27s retooling of trademark law for censorship purposes will have a profound impact on the modern normative understanding of trademarks, shaping trademarks as communicative weapons that must be destroyed so collective memories associated with such marks may be erased
When Patent Litigators Become Neurosurgeons
Get PDFPatent law is where the law meets the most cutting-edge and innovative technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones applying for patents. But when it comes to granting and enforcing patent rights, the job falls onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical field. Bridging the gap between technological expertise and legal expertise has been a pain point in patent litigation, one that Congress has tried to rectify for many years. This Comment primarily examines one of Congress’s solutions—the Patent Pilot Program—and discusses the changes that such a program could have in the event a similar system is implemented in the future. One potential change to note is that such a system should institute a standard set of guidelines and rules for each district to follow when it comes to patent infringement cases. This would ensure more uniformity across federal district jurisprudence in the field