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Public/Private Distinction in Islamic Jurisprudence: Reflection on Islamic Constitutionalism
Get PDFThe study seeks to attract scholars\u27 attention to the importance of normative theory in the process of constitutionalism in the Islamic world. The study argues that Islamic jurisprudence requires a state or a public authority to ensure the conformity of outward with Islamic norms. Accordingly, the preservation of Islamic norms is a central value controlling the dynamics of public/private distinction. Thus, the central value determines the meaning of limited government, and the study argues this central value in constitutional level defines people\u27s liberties. Then, the study discusses the effect of the Islamic normative theory on the liberal-Islamic model of constitutionalism. The study focuses on what it calls the internalizing effect of an Islamic clause. The study addresses the feasibility of the liberal-Islamic model of constitutionalism regarding the normative theory of Islamic jurisprudence. The study mainly questions the capability of judicial review to fulfill its role within the model because its interpretation is subject to the internal rationale and central value of the Islamic normative theory. The study conducts a textual analysis of Islamic clauses, and it employs Carl Schmitt\u27s concept of central Domain to examine the internalizing effect of an Islamic clause
You Have the Data ...The Writ of Habeas Data and Other Data Protection Rights: Is the United States Falling Behind?
Get PDFIn Part I of this Note, I will discuss the writ of habeas data that has been developed primarily, but not exclusively, in Latin American countries. I will discuss the intricacies of the writ, how it evolved, and how it is applied today. Using Argentina as an example, I will discuss how the writ would be used by an Argentine citizen to protect her personal data. Part II summarizes the previously employed data protection scheme in the European Union, the Data Protection Directive (“the Directive”), and will also discuss the new EU data protection regulation, the General Data Protection Regulation (GDPR), which became effective in May of 2018. I will discuss how the old Data Protection Directive is different from the GDPR, and how the rights given to EU Member citizens differ under each. I will cover the right to access, the right to stop processing, and the right to erasure, which are all provided within the new regulation (although previously alluded to in the Directive). I will provide an example of an EU Member citizen’s use of the rights provided under the GDPR.
The next two Parts of this Note will shift focus to U.S. legislation. Part III of this Note delves into the United States’ ad hoc approach to data protection, discussing several piecemeal regulations within the United States, and what type of rights those regulations provide to everyday citizens. The focus of this Part is primarily HIPAA, but other ad hoc regulations are discussed. Finally, Part IV will propose suggestions for the United States to learn from changing and growing international regulatory norms. In this Part, I will discuss the possible sources of authority for Congress to pass a comprehensive legislative scheme regarding personal data protection, as well as the authority to amend already existing legislation to expand personal rights for data protection. Lastly, I will discuss a possible expansion of the writ of habeas corpus by the judiciary to include personal data
Societal Pressures and Procreative Preferences for Gay Fathers Successfully Pursuing Parenthood through IVF and Gestational Carriers
Get PDFThis retrospective study surveyed decision-making and challenges among 78 gay cisgender male couples utilizing in-vitro fertilization (IVF) and a gestational carrier. While most couples (67.1%) found the decision to actively pursue fertility treatment ‘not difficult’, 32.9% felt that it was ‘somewhat difficult’ or ‘very or extremely difficult’. Almost 30% of couples had not undertaken financial planning for treatment, which introduced delays of N2 years for 25.3% of participants. Conceiving twins was ‘important to very important’ in 52.3% of couples, and 84.2% of couples chose to transfer two embryos to ‘increase the odds’ or reach an ideal family size in a single attempt despite increased complications with multiple pregnancies. Paternal leave was granted for one partner in 47.3% of couples, and for both partners in 43.2% of couples. One-third of couples reported experiencing discrimination, prompting a partner to seek employment, and 38% changed jobs or careers. For 80.3% of couples, the estimated cost exceeded US$100,000. Couples where one partner was aged N50 years were significantly more likely to find the decision to actively pursue fertility treatment ‘very or extremely difficult’ (28.6%), and less likely to agree on becoming parents (64.3%). Gay male couples undergoing assisted reproduction face challenges regarding decision-making, lack of infertility benefits and discrimination, which appear to be influenced by age and country of residence. Policy and educational changes are needed, including broader fertility benefits, more egalitarian parental leave, and greater awareness of risks inherent to multiple gestation
Dirty Thinking About Law and Democracy in Rucho v. Common Cause
Get PDFIn order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the pages that follow.
Part I discusses the majority’s reasoning in Rucho. Part II suggests that Rucho reflects a traditional understanding of politics in which dirty partisan politics is rightly a part of the political process. By way of conclusion, the article offers thoughts on the shift from normative theorizing to empiricism in the field of law and politics and, more importantly, why we remain optimistic even in the wake of Rucho
Afterlife of the Death Tax
Get PDFMore than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.
This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of wealth. As a result, today’s estate tax is functionally a zombie: it accounts for less than one percent of federal revenues and does little to prevent the accumulation of wealth among a small group of citizens. The estate tax largely serves to evoke fear and costly tax planning, but it only manages to bite the largest and slowest estates.
Although the estate tax has proven hard to kill, it is time for Congress to end it definitively and transfer its functions as revenue raiser and impediment to wealth accumulation to the income tax. To effect that transfer, Congress needs to do three things: First, it should treat death as a realization event and tax estates on their assets’ unrealized appreciation. Second, it should treat the receipt of an inheritance as gross income in the hands of heirs, thereby requiring heirs to pay income tax on their inheritance. Third, Congress should eliminate the step-up in basis and, instead, assign basis to inherited property under ordinary basis rules. By making these three changes, Congress can put to rest the zombie estate tax, while, at the same time, revivifying taxation at death
A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection
Get PDFIs more information always better? First Amendment commercial speech jurisprudence takes this as a given. However, when information is only available from a self-interested and marketing-savvy pharmaceutical company, more information may simply lead to more misinformation. Notably, doctors are also misled. This can result in public health harms when companies are promoting unapproved uses of prescription drugs that the Food and Drug Administration (FDA) has approved for other purposes—commonly referred to as “off-label” uses. Contrary to judicial presumptions, as well as the presumptions of some doctors and scholars, doctors are not sophisticated enough to always discern what is true versus misleading information. Doctors are susceptible to the same largely unconscious cognitive biases as all individuals; this means that they operate on “schemas” (mental presumptions) that impact how they interpret marketing information. Courts also rely on schemas about how doctors interact with marketing. These schemas have contributed to a First Amendment jurisprudence that has serious consequences for public health because it fails to account for how doctors actually interact with marketing of off-label uses, and such uses are associated with adverse health consequences.
This Article argues that pharmaceutical marketing, especially regarding “offlabel” uses, should be more critically evaluated and entitled to less First Amendment protection—contrary to recent court trends, beginning with the 2011 Supreme Court case Sorrell v. IMS Health Inc. In other words, this Article is taking a new approach to address court cases that a number of scholars have criticized as unduly expanding the scope of First Amendment protection for pharmaceutical marketing with negative policy repercussions for public health. Not only are many off-label uses medically unsupported, but permitting broader promotion of such uses undermines incentives for companies to scientifically study those uses. Whereas prior articles have tended to focus on how to adapt to the new law or advocate rejecting the existing law based primarily on policy grounds, this Article uses cognitive bias literature to explain why recent cases actually fail to achieve key First Amendment goals. This Article further provides an empirically supported argument against expansion of First Amendment law for off-label promotion
Ordinary Causation: A Study in Experimental Statutory Interpretation
Get PDFIn a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.
This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, ask the public. As a demonstration, the Article reports the results of a nationally representative survey of nearly 1500 jury-eligible laypeople. It tests the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in Title VII, the Hate Crimes Prevention Act, the Controlled Substances Act, and jury instructions in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage —patterns that squarely contradict the Court’s ordinary meaning determinations. The results also demonstrate that certain alternative causation standards, though rejected by the Court as inconsistent with ordinary linguistic, conceptual, and moral intuitions, come closer to tracking all three.
These discoveries raise serious concerns about the outcomes in recent criminal and tort causation cases, and possibly about ordinary and plain meaning interpretation more broadly. After discussing the implications for causation doctrine and statutory interpretation, the Article considers whether similar experimental methodologies might shed light on additional interpretation controversies in criminal and tort settings, on theories of common law doctrinal development, and on philosophical analyses of causation in criminal and tort theory
