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Due Process, Democracy, and the Regulatory State: A Response to Martin Redish and Victor Hiltner\u27s Adversary Democratic Due Process
Get PDFDue process protection is typically regarded as a human right, akin to free exercise of religion or the privilege against self-incrimination. In Adversary Democratic Due Process, Authors Martin H. Redish & Victor Hiltner argue that it has a deeper and more comprehensive significance.\u27 They view due process as a basic component of democracy, an essential element in our entire system of government. In this comment, I will endorse Authors Redish and Hiltner\u27s thesis and offer an additional perspective to support it. In addition, I agree with nearly all the implications they draw about specific applications of their thesis, but take issue with some of their conclusions about the application of the Due Process Clause in administrative settings. The genius of democracy, in Authors Redish and Hiltner\u27s view, is that it combines two seemingly opposite views of human beings. One is a hard-headed recognition that people are strongly motivated by self- interest and necessarily come into conflict with one another on this basis. The other is an aspirational view that people seek self-actualization and strive to achieve the common good for their society.\u27 Denying the first tendency is naive, denying the second is cynical, and denying either is reductionist
Chancery Court Declares Corwin Unavailable to Defend Against Unocal Claim for Injunctive Relief Applies Enhanced Scrutiny in Reviewing Defensive Measures Allegedly Adopted to Forestall Investor Activism
Get PDFGenealogy in Constitutional Law
Get PDFGenealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues.
After comprehensively documenting this development, this Article contends that genealogy can advance conclusions within several widely recognized modalities of constitutional interpretation. More specifically, genealogy can be used to undermine assertions of authority implicit in arguments from precedent, tradition, and ethos. And it can be used to reveal its object’s function in ways that are relevant to arguments from text, consequences, and history.
The Article then suggests some improvements to the current allocation of institutional responsibility in evaluating genealogical arguments. Presently, genealogical arguments tend to surface for the first time in the opinions of appellate courts—often the Supreme Court. This is unfortunate because genealogy often depends on idiosyncratic and nuanced inquiries of historical fact, which appellate courts are poorly equipped to conduct. A better approach would be for trial courts to have primary responsibility for judicial factfinding relevant to genealogical critiques of laws, rules, and practices
Dismantling a Marketplace for Private Violence: Reclaiming the Modern Weapons of War to Forestall Filibusters of the Web
Get PDFCivilian military activism is a challenge that U.S. policymakers have struggled with since the Founding. The United States’ first answer to this issue was the Neutrality Act of 1794, which embodied the young nation’s rejection of private violence and fear of being dragged into international conflicts by overzealous citizens. For decades, the Neutrality Act remained an important tool in the government’s repertoire and was amended to close newfound loopholes and respond to evolving technologies. In the mid-1800s, however, the government’s enforcement efforts waned, culminating in a period where the acts of the government and those of the governed bled together to cultivate a marketplace for private violence.
Today, the new domain of cyberwar creates unprecedented opportunities for civilian participation in war, casting a new light on the wisdom that motivated the Neutrality Act. Yet as the weapons of war have changed, U.S. law has remained stagnant. It is unclear whether the Neutrality Act, or any current law, provides the means for the United States to adequately address civilian participation in cyberwar. Even if the tools existed, governmental will to address this phenomenon has diminished, echoing political attitudes of the mid-1800s that contributed to the rise of the liminal state and fueled a surge of violence perpetrated by U.S. citizens abroad.
This Note examines modern issues posed by cybervigilantism through a historical lens, focusing on the phenomenon of the filibusters—flamboyant American adventurers who flouted neutrality laws in the mid-1800s. Modern realities, like the rise of the Ukrainian IT Army, should spur the United States to reevaluate existing law and enforcement philosophies that fail to adequately address civilian participation in cyberwar
Blinded by the Light: Resolving the Conflict between Satellite Megaconstellations and Astronomy
No full textThe sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to troves of vital data from distant sources of cosmic light and radio waves.
To date, the world has been proceeding on the implicit assumption that the law of outer space essentially licenses the satellite operators to proceed however they wish in this matter, with little required consideration for the losses inflicted upon astronomy and the myriad scientific missions. There have been some modest, voluntary efforts at mitigation of the interference effects, but nothing sufficient or reliable has been effectuated.
This Article describes the incipient clash between satellite megaconstellations and astronomy, assesses the relevant international and domestic legal authorities, and proposes compromise solutions to mitigate the damage. Overall, the thesis is that a better balance meaningfully informed by the Outer Space Treaty must be struck between these competing types of space activities, without ceding to either a comprehensive right to proceed in disregard of the key functions of the other
Access to Justice for Black Inventors
Get PDFTo receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.
An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art ( PHOSITA ) would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use the described invention without undue experimentation, and a patent examiner will judge whether the patent application\u27s written description has met this standard. Many inventors choose to navigate this difficult communication path with the help of a patent practitioner; this can either help to ease or exacerbate communication obstacles between examiners and inventors. As shown in this Article, the largely homogenous patent gatekeepers practitioners and examiners erect communication barriers to entry for inventors from underrepresented minority groups.
Inventors must ensure the majority-group-based practitioners and examiners recognize valuable distinctions of the invention over current technology and understand how to use the new invention without undue experimentation. When the patent practitioner and examiner communities do not share the same primary cultural experience as an inventor or an invention\u27s expected users, this hurdle compounds. Some inventors are disproportionately burdened when describing their invention; some must supplement the practitioners\u27and examiners\u27 lack of systemic cultural capital more than others.
Through a case study of Black hair-care patents, this Article adds to the literature by highlighting hermeneutical injustices for Black inventors through a cultural-capital lens. This Article is the first in a series of papers showing how the majority-culture bias in patent law and the lack of resources to bridge minority- and majority-group-derived cultural-capital gaps disparately affect those inventing in minority-group cultural spaces. The cultural gap between minority-group inventors and patent practitioners, nearly all of whom are majority group, leads to inadequate and unequal representation and decisionmaking. This Article calls upon the United States Patent and Trademark Office ( USPTO ), patent attorneys, and academics to create a more equitable patent system by altering patent practice, legal education, and ethics rules
Avoiding a Nine-Headed Hydra : Intervention as a Matter of Right by Legislators in Federal Lawsuits after Berger
Get PDFHeightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)\u27s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and legislative consequences that occur without such a standard. Under this standard, lower courts first determine whether Rule 24(a) trumps state law before utilizing a shareholder test to evaluate whether the existing party adequately represents the interest of the potential legislator intervenor. This standard ultimately seeks to prevent the overburdening of the courts and to protect their independence
Efficiency at the Price of Accuracy: The Case for Assigning MDLS to Multiple Districts and Circuits
Get PDF28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their original forum for trial, meaning that a handful of judges wield considerable influence over a vast portion of this nation’s civil litigation.
This Note illustrates how the current MDL scheme suffers from two accuracy problems due to concentrated decisionmaking. First, overburdened MDL judges are regularly tasked with making legally dubious decisions, often lacking concrete authority or procedural guidance. This is especially apparent with regard to choice of law: MDL judges, tasked with applying conflicting state and federal law, face an enormous interpretive burden. Such a burden drains the limited judicial resources of an MDL court and often results in judges neglecting to address nuances in conflicting law. Second, there is the problem of inaccurate outcomes, caused by subjecting hundreds or thousands of unique cases to a single, uniform decision. Statistically, the risk of an extreme decisional distribution is so high that risk-averse parties are induced to settle where they otherwise would not
Choosing Sides: On the Manipulation of Civil Litigation
Get PDFOur litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the incentive and the ability to switch between positions at will, assuming whichever litigatory role best serves their interests under given circumstances. These litigants essentially choose which side of the “v.” they prefer to be on. This choice allows professional litigants to reshape litigatory interactions, secure easy victories against private individuals, and hinder the fair and equal adjudication of disputes.
Based on this observation, this Article makes three novel and important contributions. First, it reconceptualizes our understanding of the litigatory landscape. The Article challenges the existing understanding of the litigation system by deconstructing the traditional plaintiff-defendant dichotomy and highlighting the malleability of the litigatory setting. Second, it draws attention to the implications of professional litigants’ manipulation tactics. Finally, it proposes legal reforms designed to balance the scales and update the institutions of litigation to the current reality, in which most legal disputes occur between private individuals on one side and professional adversaries on the other
