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Muslim Modernism, Islamic Law, and the Universality of Human Rights
Get PDFI first encountered Professor An-Na’im’s work quite serendipitously as a graduate student at the University of Chicago. At that time, I had not yet begun my legal studies and was early in my graduate student days at the Department of Near Eastern Languages and Civilizations. While browsing the stacks of the Regenstein Library, my eyes fell upon Professor An-Na’im’s book, Toward an Islamic Reformation. Although the book was not particularly relevant to my coursework at the time, its title intrigued me and I checked it out and read it quickly alongside my other assignments. At that time, I thought the work was interesting but I did not give it too much heed. Little did I know that, upon becoming a legal academic with more than a passing interest in Islamic and human rights law, I would have occasion to engage with Professor An-Na’im’s rich body of scholarship repeatedly
The Inequalities of Innovation
Get PDFOver the last few decades, the United States has become more innovative, but the gains have been distributed unequally. In 2020, over 50% of new U.S. patents went to the top 1% of patentees, and more than 50% of all patents of U.S. origin were generated by just five states, all coastal. Less than 13% of inventors were women. The economic, geographic, and demographic concentration of innovation highlight how the intersections between two traditionally discrete topics—innovation and inequality—have become increasingly relevant. But rather than any single inequality, this Article argues, multiple inequalities—of income, opportunity, and access—have relevance to innovation. Examining the inequalities of innovation, separately and together, exposes the tensions, at times surprising, between notions of equity. When mapped onto patent law, an inequalities framework also reveals how patent law can exacerbate inequality by providing enhanced returns to “invention capital”—the role models, trust, know-how, and networks required to take advantage of inventing. But an inequalities framework also shows how patented innovation can improve conditions for the worst-off, by providing paths to prosperity and hastening the creation and diffusion of innovation across classes, even as it makes the rich richer.
Building on the “inequalities” framework described above, this Article offers a set of legal and administrative proposals grounded in patent law for addressing inequality concerns. To ensure equal opportunities to participate, this Article proposes the creation of an Independent Office of the Small Inventor Advocate, akin to the National Taxpayer Advocate, that would have responsibility for outreaching to and increasing invention capital and know-how among first-time, underrepresented, and under-resourced inventors, and leveling up the inventing playing field, for example through universally accessible patent-quality technology. To expand access to innovation through partnerships and expand public understanding and oversight of the patent system, by other agencies, for example, this Article proposes the introduction of an independent Office of Public Interest and Partnerships in Innovation. Finally, introducing and centering equity metrics, like the number of first-time innovators and gaps in the rates, can support equitable growth in innovation
A Peace Treaty for the Bar Wars: An Updated Framework to Determine Permissibility of Mandatory Bar Association Activity
Get PDFFirst Amendment challenges against the constitutionality of mandatory bar associations have frequented federal appellate courts. However, only two Supreme Court cases are directly applicable to these claims, neither of which provides a clear framework to adjudicate all of the issues involved. As a result, appellate courts have taken divergent routes to determine the constitutionality of whether (1) mandatory membership to the bar generally violates the freedom of association, and (2) certain activities undertaken by mandatory bar associations violate the freedom of speech and, in some circuit courts, association. The first issue has resulted in a rift between circuits. The Sixth and Seventh Circuits assert that, pursuant to Supreme Court precedent, mandating attorneys to join a bar association does not violate the First Amendment freedom of association; the Fifth, Ninth, and Tenth Circuits disagree. As for the second issue, lower courts are left only with the Supreme Court’s vague description of what mandatory bar association activity is permissible.
The first issue’s circuit split has resulted in remarkable inconsistency among the states, thirty-one of which (and the District of Columbia) have mandatory— also known as integrated—bars. This Comment argues that the Sixth and Seventh Circuit Courts of Appeals, in Taylor v. Buchanan and Jarchow v. State Bar of Wisconsin, respectively, properly applied Supreme Court doctrine to the freedom of association issue, thus closing the door on such claims. As long as Supreme Court precedent remains binding, appellate courts are compelled to follow it. However, should the issue be determined in favor of the Fifth, Ninth, and Tenth Circuits, this Comment argues that freedom of association claims, along with freedom of speech claims, should be analyzed using a new proposed “germaneness” test.
This Comment introduces a multifactored sliding scale test to determine whether activities undertaken by integrated bar associations are sufficiently germane such that they do not violate the freedom of speech and, should the Sixth and Seventh Circuit approach be rejected by the Supreme Court, association. The test blends the approaches of the Fifth and Tenth Circuits to provide a comprehensive framework to determine the permissibility of bar association activity. Under this test, the challenged activity must satisfy a weak connection to pass the basic threshold—the standard for germaneness set forth by Chief Justice Rehnquist in South Dakota v. Dole. It then considers the strength of the connection between the activity and the stated goals of the bar association; the nature and public outreach of the activity; the societal dissonance of the challenged expression; and the bar’s level of funding toward the activity. This test synthesizes Supreme Court precedent and current appellate understanding of the germaneness test, creating an easily applied framework from existing caselaw
The Corrosive Effect of Inevitable Discovery on the Fourth Amendment
Get PDFThe Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual speculation, imagining a world but-for the unlawful police action, and so permits judges tremendous discretion. In the absence of further Supreme Court guidance, federal circuit courts have fashioned highly varying doctrinal tests to implement the doctrine.
This Article identifies some tests which constitute legitimate experimentation— permissible variation attempting to faithfully operationalize the dictates of Nix—but shows that other tests have devolved to the point of blatant manipulation, including some which prescribe a laxer “reasonable probability” standard, in defiance of the titular requirement of inevitability. Inevitable discovery is often combined with inventory searches, which permit suspicionless searching under the guise of bureaucratic process. Inventory searches apply automatically in numerous circumstances and consequently, under the laxer definitions of inevitability, evidence found in violation of the Fourth Amendment is almost always “inevitably discovered.” Likewise, “hypothetical search warrants” enormously expand the reach of inevitable discovery, admitting evidence when police fail to seek independent judicial approval before searching, on the theory that they could have and would have obtained proper judicial sign-off in a counterfactual world. The result of these doctrinal combinations is an unraveling of the substantive protections in other criminal procedure domains: the doctrinal minutiae of exceptions such as search incident to arrest become meaningless when evidence found is routinely admitted through inevitable discovery.
For the Fourth Amendment to provide any substantial protection, this colossal loophole must be closed. We outline a range of potential reforms, identify which reforms must have highest priority, and provide a new framework by which inevitable discovery could be reoriented to avoid the hollowing out of the Fourth Amendment’s protections
Medicare Bankruptcy
Get PDFMedicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to make insolvency less unfair, less harmful, less likely, and more effective as a tool to promote compromise and cost control in the program. In short, this Article argues for the establishment, by law, of rules to govern Medicare bankruptcy.
The Article’s analysis of how an insolvent Medicare program would work reveals several unsettled legal questions, resolution of which would determine insolvency’s harms, who would pay them, and when. Uncertainty surrounding the consequences of insolvency would be problematic from the ex-post perspective because it would increase the unfairness and magnitude of the associated harms. Further, such uncertainty is already problematic from the ex-ante perspective of a program in a five-decade cycle of insolvency because it inhibits compromise and disincentivizes Medicare’s powerful industry constituents from using their influence to promote cost control. In developing this normative insight, this Article for the first time applies the structural, ex-ante theoretical perspective developed in the municipal bankruptcy literature to the law and political economy of a federal spending program. It concludes by addressing the roles of Congress, the Department of Health and Human Services, and courts in clarifying the consequences of Medicare insolvency. Although a partial framework could and should be established by regulation in the short term, this Article calls for a Medicare bankruptcy provision ultimately to be included as a failsafe in future legislation, if and when it comes, to address the current crisis
Preventing Tam\u27s Proudest Boast from Protecting the Proud Boys: A Response to Free Speech Absolutism in Trademark Law
Get PDFRecent events, including the infamous Unite the Right rally in Charlottesville in 2017 and the attack on the U.S. Capitol on January 6, 2021, have brought the First Amendment, hate speech, and the resurgence of white nationalist rhetoric into the public eye. Throughout the twentieth and twenty-first centuries, while much of the Western World and the United Nations worked to restrict hate speech, the U.S. Supreme Court increasingly expanded protections for speech and expression under the First Amendment and narrowed the exceptions under which speech is not protected. In particular, under the near-absolutist interpretation of the First Amendment, hate speech is protected unless it falls within the exceedingly narrow exceptions to First Amendment protection, such as the “fighting words” or “incitement to imminent violence” exceptions. Critics of the absolutist approach and the protection it affords hateful and racist speech argue that this approach to the First Amendment is inconsistent with, and in fact denies to minorities, other constitutional guarantees, namely the Fourteenth Amendment right to equal protection.
Through an exploration of the evolution of the absolutist interpretation of the First Amendment, this Comment joins that argument and seeks to further examine the place of hate speech in First Amendment jurisprudence within the context of federal trademark law, particularly through Matal v. Tam. In Tam, the landmark trademark case in which the Supreme Court struck down the disparagement clause of the Lanham Act as violative of the First Amendment, the Court furthered its current absolutist interpretation of the First Amendment and firmly stated that the “proudest boast” of the First Amendment is protection for the thought that we hate. In the context of Tam, this meant that Simon Tam’s Asian American band The Slants—which, in choosing that name, engaged in reappropriation of the traditionally disparaging term “slant”—could obtain the federal trademark registration for a band name that it had been denied under the disparagement clause. However, under Tam’s holding and the holding of its companion case, Iancu v. Brunetti, others with intentions less pure and tolerant than reappropriation may now also obtain federal trademark registrations for and profit from the most hateful and offensive marks.
This Comment proposes a solution—an anti-hate speech amendment to the Lanham Act—to the double-edged sword created by Tam and Brunetti. Under this solution, marks that would constitute hate speech would be presumptively barred from registration. However, the amendment would also include a reappropriation exception by which applicants could obtain registration of an otherwise hateful or disparaging mark by successfully demonstrating that they are using the mark to engage in reappropriation to reclaim the disparaging mark and empower their community
Bankruptcy and the Anti-Assignment Acts: A New Approach to the Issue of Assumption and Assignability of Government Contracts
Get PDFOne of the most important and valuable tools that a business debtor has for reorganization under the bankruptcy proceedings is assuming and assigning executory contracts. However, circuit courts are divided on the issue of whether the Anti-Assignment Act, in conjunction with Section 365(c)(1)(A) of the Bankruptcy Code, prohibits the assumption of an executory government contract over the objection of the government where the contract is to be performed by the debtor-in-possession. Some circuit courts apply the “Hypothetical Test” which restricts a debtor-in-possession from assuming an executory contract over an objection if applicable law would bar assignment to a hypothetical third party, even if the debtor-in-possession has no intention of assigning the contract to a third party, and the contract is to be performed by the same performing party (i.e., debtor-in-possessions or reorganized debtor). Others adopt the “Actual Test,” which holds that laws, such as the AAA, only prohibit assumption where the debtor-in-possession actually intends to subsequently assign the assumed contract to an unrelated third party.
In the case of a government contract, courts have to balance between protecting government interests and the debtor’s interest in reorganization. While government interests can have underlying considerations (such as national security concerns) that are crucial for the success of the U.S., the debtor’s interest in reorganization is also crucial in helping the economy to weather a crisis. However, both the Hypothetical Test and the Actual Test mechanically favor one side over the other, putting either the country’s national security or its economy at risk. Therefore, this Comment proposes that courts use a four-pronged analysis that examines each case in light of the totality of the circumstances