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Original Foreign Affairs Federalism
Get PDFTwo of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. I will not go so far as to say that Mike Glennon and Rob Sloane’s new book, Foreign Affairs Federalism: The Myth of National Exclusivity, 1 is biblical in either ambition or execution. But it is a very, very good book. It is close to indispensable for anyone who is trying to parse the interstices of such underanalyzed topics as foreign affairs preemption, the Compact Clause, and federal common law. It contains powerful and useful analyses of the law governing the federal treaty power. The book even has concise but sophisticated discussions of ancillary topics ranging from Foundingera conceptions of federalism to modern modes of constitutional interpretation. The book’s breadth and erudition are truly remarkable. I am delighted for the opportunity to provide this brief review
Toward a Critical Race Theory of Evidence
Get PDFScholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of people of color’s lived experiences of systemic racism are regularly excluded at trial, while evidence of white norms and beliefs receives “implicit judicial notice.” Finally, I advocate for a new critical race theory of evidence law and offer solutions — including a reinterpretation of Federal Rule of Evidence 403 — to increase equality in the courtroom
A License to Kill: State Sponsored Death in the Oldest Colony in the World
Get PDFThe article discusses the death penalty in Puerto Rico as a means of state violence by the United States over Puerto Rico. In light of this, the author recounts the Puerto Rican colonial experience through a legal lens, beginning with the first organic law of Puerto Rico and the Insular Cases. Afterwards, the author examines the imposition of the death penalty on Puerto Rico and the challenges it has faced based on the due process of the fourteenth amendment. The article concludes with the stating how the death penalty is as another expression of the U.S. Congress plenary powers over the Island, given that it is expressly rejected in Puerto Rico’s Constitution
Patenting Frankenstein\u27s Monster: Exploring the Patentability of Artificial Organ Systems and Methodologies
Get PDFThe conception of Frankenstein’s monster bridges the ever-narrowing divide between man and machine. Long before Congress codified Section 33(a) of the America Invents Act (“AIA”), Mary Shelley’s vague description of the monster’s creation has left people wondering: what defines a human organism? Through an analysis of patent law and scientific progress in the development of artificial organ systems, this paper explores the boundaries of patentable subject matter in the United States and attempts to clarify Congress’s determination that “no patent may issue on a claim directed to or encompassing a human organism.” Though patent law should incentivize development of artificial human tissues and organs, Section 33(a) of the AIA stands to limit scientific progress. Either judicial or legislative action must clarify the term “human organism” to balance the need for artificial organ development, while hindering unethical scientific development of artificial humans
The Technology Requirements of the First Electronic Monitoring Agreement in US for Zappers, Phantomware, and Other Sales Suppression Devices
Get PDFOn August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.
The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of sales information to be monitored, and the technological means by which that information is gathered, secured from manipulation, and transmitted electronically to the DOR.
This paper focuses upon the technology requirements in this first-of-its-kind electronic monitoring agreement between a revenue authority and a taxpayer in the US. The basic agreement, which not only delineates the specific obligations of the taxpayer to provide the WA DOR with real time access to retail sales information, but also sets out various protections for the taxpayer, such as limitations on possible allegations of breach, rights to cure, and administrative adjudication of material disputes, all designed to protect the taxpayers right to continue in business, will be discussed in a separate follow-up article.
The problem this agreement seeks to address is sales suppression at the point of sale (POS). Not traditional sales suppression, or skimming with double tills, but sophisticated technology-assisted skimming. The specific targets are programs known as Zappers and Phantomware, which are used with POS systems or electronic cash registers (ECRs) to manipulate sales figures. Once installed, an electronic monitoring system will solve other types of suppression, like internal theft, open till, misuse of legitimate functions such as training mode, or voided transactions, but those frauds are not its immediate target
Review of Bind Us Apart: How Enlightened Americans Invented Racial Segregation by Nicholas Guyatt
Get PDFLegal historian Nicholas Guyatt argues in Bind Us Apart: How Enlightened Americans Invented Racial Segregation (Basic 2016), that racial segregation was created not by enemies of equality but rather by friends of equality in order to establish practical limits on their disruptive ideas. Drawing on rich sources, he says liberals pursued separationist policies not only to manage the social experience of slaves and former slaves, but also native peoples. Here I make the following points: (1) Guyatt doesn\u27t distinguish between temporary, strategic resort to segregation from deeper philosophical commitments to segregation; (2) juxtaposing the plight of African slaves in America and the experience of native peoples doesn\u27t by itself explain why integration was seen as more feasible for one group and annihilation for the other. We need to know more about each group\u27s relative role in the political economy, the state of politics at the time, and the connections between national policy, territory, and the political imagination
Frozen Ethics: Melting the Boundaries between Medical Treatment and Organ Procurement
Get PDFWhen Renee Fox, medical sociologist and noted historian of organ transplantation, first learned of the proposal to use non-heart-beating cadavers as organ sources more than 25 years ago, she was appalled. She labeled the proposal the most elaborately macabre scheme for obtaining organs that I have encountered, adding that it borders on ghoulishness. She saw the procedure as beyond the pale of the medically decent, morally allowable, and spiritually acceptable (Fox 1993, 232). But medically decent has seldom gotten in the way of procuring organs for transplant, and we now seem to be on the verge of adopting an uncontrolled version of organ procurement from a non-heart-beating cadaver.
In their commentary describing this new procedure (uncontrolled donation after circulatory determination of death or uDCDD), Arjun Prabhu, Lisa Parker, and Michael DeVita seek to normalize uDCDD by pairing it with an equally disturbing, highly experimental, long-shot emergency intervention for cardiac arrest due to exsanguination (emergency preservation and resuscitation or EPR) (Prabhu et al 2017). They argue that the central ethical question presented by uDCDD is how a hospital can avoid the appearance of conflicts of interest when proposing both uDCDD and EPR. A more fundamental ethical question, we suggest, is whether either of these procedures both done without informed consent on minority communities whose members will be used as human guinea pigs-should be done at all
Gorsuch versus Scalia: How Will Antitrust Change?
No full textBefore writing this review of Judge Neil Gorsuch\u27s antitrust opinions I took a quick look at what others have written on the topic. It was not hard to find several reviews of Gorsuch\u27s antitrust opinions. Why should I write a review of his opinions, I wondered, if others have already done so? Why not simply refer the reader to one or more of the published reviews
Understanding the Failure of Health-Care Exceptionalism in the Supreme Court\u27s Obamacare Decision
Get PDFOn June 28, 2012, a mere century after the first presidential proposal for national health insurance, the Supreme Court issued a resounding victory for President Obama and for health-care reform generally, upholding the Patient Protection and Affordable Care Act against a serious constitutional challenge. Nevertheless, the Court also struck a potential blow to future health-care reform efforts. A majority of the Court refused to accept the Solicitor General’s argument that health care is a unique market with unique regulatory needs that justify special constitutional treatment. The failure of health-care exceptionalism in the Court’s opinion might render future reform efforts more difficult than they would have been if the Solicitor General’s argument had carried the day. This Commentary seeks to shed light on the Court’s hesitation to recognize the uniqueness of health insurance and health care, noting that market-based exceptionalism in constitutional law has a long, dark history that the Court was understandably loath to repeat. Although the result of the majority\u27s one-size-fits-all approach to constitutional analysis in this case is an odd holding that elides some genuine uniqueness of American health care, the alternative of health-care exceptionalism might have been much worse for our overall constitutional system
Whittling Away at Trademark Law’s Notions of Harm
Get PDFIn recent decades, numerous scholars have challenged trademark law’s various conceptions of harm. Unlike copyright and patent law, trademark law positions itself as a harm-avoidance regime, rather than a mechanism for capturing economic rents. At least under the dominant theoretical model, the law seeks to promote competition by ensuring the accuracy and reliability of source-indicating symbols in markets. In practice, however, the harm narrative often breaks down under scrutiny. Recent articles have taken issue with the assorted harms that trademark law purports to prevent. From dilution by blurring to “irrelevant” confusion, critics have argued that at least some of the injuries targeted by trademark law are illusory