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Defensive Rule of Law
Get PDFThe rule of law has been tested over the past decade, not only in developing countries but also worldwide. The rule of law community has, in the past, focused mostly on improving the rule of law but has not emphasized building resilience into those rule of law gains. This Article will explore how development programs might encourage more robust features in their partner countries to withstand attempts to undermine the rule of law. This exploration will draw upon an umbrella concept of guardrails and norms, often associated with protecting democracy, and look at four approaches that might be used for this defensive rule of law. The four approaches include (1) militant (or defensive) democracy; (2) the idea of social support for the rule of law; (3) the benefits to the rule of law in pluralistic legal systems; and finally, (4) an overview of fourth-branch institutions. An example from constitutional reforms in Albania demonstrates how these approaches might prevail. A principal lesson is that defensive rule of law could focus both on programs that build resilient institutions—such as fourth-branch institutions meant to protect independent, responsible courts through appointment, governance, and discipline—and also on programs that encourage resilience in the human element, including improving norms and legal culture. In pluralist legal systems, this approach may have different guarantees available
Congress Is an It: A New View of Legislative History
Get PDFProminent judges and scholars have long challenged the use of legislative history in statutory interpretation. Critics point to the privileged role that supposedly unrepresentative committee chairs play in the production of legislative history and a perceived inability to aggregate individual lawmakers’ intentions. These features, the argument goes, cast doubt on the reliability of committee reports, floor speeches, and the like as windows into congressional intent. This critique even comes with a pithy framing: using legislative history to interpret statutes is misguided because “Congress is a ‘they,’ not an ‘it.’”
This widely adopted expression, although appropriate in previous congressional epochs, no longer reflects reality. Drawing on analysis of nine decades of congressional data, a detailed accounting of organizational changes on Capitol Hill, and case studies of bills passed in different eras, this Article synthesizes a set of developments that, taken together, greatly improve the signal quality of legislative documents. In brief, producers of legislative history in the contemporary Congress operate as agents of cohesive coalitions; the majority party selects them for these roles based on their orthodoxy, then decides to engage them to draft some bills and sideline them for others.
In light of these developments, it is time for courts to inter the widespread view that legislative history cannot shed light on an enacting coalition’s collective will. In its place, this Article presents a new paradigm: when determining whether to consult legislative history, judges must consider Congress’s structure and procedures at the time of the relevant statute’s enactment. For laws enacted in recent decades, the conditions are such that legislative history evinces legislative intent
The Quest for Funding Under the Dutch WAMCA: Third Party Funding and the Viability of a Procedural Fund
Get PDFA new chapter started for collective actions with the 2020 Dutch Mass Damage Settlement in Collective Actions Act (WAMCA) and the E.U. Directive on representative actions for consumer cases. The expansion of the class action mechanism has not only raised procedural and practical questions but has also triggered debates on the funding of inherently expensive collective claims for damages. Absent appropriate public legal aid schemes, third-party litigation funding has been on the rise and commercial funding has become one of the most discussed and controversial topics in European civil justice. Developments in collective actions and funding have prompted the Dutch Ministry of Justice to commission a study on the financing of collective actions and the desirability of establishing a litigation fund. This paper reviews Dutch collective actions and the quest for suitable funding mechanisms under the WAMCA at the background of E.U. developments
For the Birds: Trademark and Brand Management Considerations for the Rebranded Digital Town Square
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The Right to Know: Putting Public Health and Safety Above Trade Secret Protections
Get PDFTrade secret protection is granted by the government to provide entities with an actionable right against the theft and misuse of their secrets. The government provides this protection to compensate for wrongful acts of competitors. However, the lack of checks on trade secret protections has instead provided a pathway for private entities to hide harmful information from the public.
From water usage in a drought area to using toxic chemicals for fracking, there are countless examples of trade secret abuses. While not every use of trade secret protection is malicious, awarding unchecked trade secret protection can still have grave consequences. Recently, these consequences were most notable during the COVID-19 pandemic response when pharmaceutical companies used trade secret laws to prevent low- and middle-income countries from developing their own COVID-19 vaccines and treatments.
This Comment explores a brief history of trade secret legislation in the United States, with a focus on recent challenges surrounding the invocation of trade secret protections. This illuminates the frequent exemptions of trade secrets from conventional obligations to provide information to the public, revealing a critical gap in essential knowledge concerning public health and safety. Then, this Comment proposes a new legal framework that will require private entities to provide certain information to the public on request. This proposed framework is modeled after the Freedom of Information Act (FOIA) and utilizes many of the same procedures and mechanisms. However, unlike FOIA, this framework weighs heavily in favor of disclosure, ensuring the public will get information—such as drug efficacy— needed to make decisions and hold private entities accountable for impacts on public health and safety without completely removing trade secret protections. Finally, this Comment proposes incentives that can be offered to private entities, including increased patent protection and tax benefits. Trade secret protections are rooted in tort law against unfair competition; trade secret law was never meant to protect companies from public scrutiny. This Comment puts the balance back in the public’s favor