My paper will discuss the Supreme Court’s creation of new rights, which I call the rights of the Right, and who wins and who loses by its decisions. Looking at who is helped and who is hurt leads to interesting insights, if not conclusions. Citizens United endowed corporations with rights of free speech and Hobby Lobby granted religious rights to for-profit corporations. Citizens United, however, limited the power of Congress to ensure a level playing field in political campaigns. The Court’s decisions often interfere with third parties’ rights or benefits. Hobby Lobby protected the religious rights of the owners of their corporation but made it more difficult for the employees to obtain medical contraceptives. In NFIB, Chief Justice John Roberts ruled the Affordable Care Act’s system of Medicare expansion to be unconstitutional because it did not give states a meaningful choice, thereby freeing the states to opt out of the expansion while enabling the denial of expanded Medicare coverage. In Shelby County, Justice Roberts partially invalidated the Voting Rights Acts by applying equal protection to the states: “Each state is entitled to equal respect and dignity.” The states’ right to equality justified limiting the protections of the Voting Right Act for voters in those states. Trinity Lutheran Church limited the power of states not to fund religious institutions. NFIB held that the Commerce Clause does not enable Congress to require health insurance coverage. Masterpiece Cakeshop indicated that a baker has rights of free speech and free exercise of religion not to provide a cake to a gay wedding but also dismissed any rights of gays to equal treatment. Janus, where the plaintiff challenged mandatory contributions for union representation, created a right of non-association. Professor Morgan Weiland calls this result “thin autonomy.” In this Article, I will discuss several recent Supreme Court cases that have created new rights, including District of Columbia v. Heller, Burwell v. Hobby Lobby Stores, Inc., and Citizens United v. Fed. Elec. Com’n, National Federation of Independent Business v. Sebelius, McCutcheon v. Fed. Election Committee Commission, Town of Greece v. Galloway, and McCullen. The Court has shifted from protecting powerless minorities to protecting powerful minorities, the religious (except for Muslims), and those free souls who wish to live free of regulation and legal process. The latter category is given freedom to scam--those who do not want to contribute to unions which bargain for them, who wish to rely on emergency care rather than buy health insurance, abortion counseling centers that don’t want to reveal their not being licensed, exploiters of consumers, and employers and sellers who insist on arbitration agreements. Congress is among the losers. The Court has limited its power under the Commerce Clause in NFIB, under the Voting Rights Act in Shelby, and under the Bipartisan Campaign Reform Act in Citizens United. States are given freedom to come up with new ways to disqualify voters, to gerrymander. States are to be treated with equal dignity but are not allowed to have their own policies on funding religions, regulating abortion counseling centers, or arbitration. Corporations and their owners can fund political activity and not fund contraceptives. It is a zero-sum game; the losers are those without the resources to fund political campaigns, who do not own corporations but work for them, Muslims, the non-religious who do not wish to fund places of worship, those want to protected by the civil rights laws against religious organizations, gays who want wedding cakes, the uninformed who need information, employees and consumers who want the protection of the courts, and members of public unions. Voters who are minorities or whose votes have been diluted by gerrymandering also may lose their voting rights.
Prior to the government adopting policies of economic reform in the late 1970s, the People’s Republic of China (“the PRC” or “China”) did not have a formal securities market or an accompanying regulatory scheme. For the most part, it was not operationally feasible for a market to develop and flourish in China because the PRC had a centrally planned economy with state-owned enterprises as the primary form of business ownership. However, economic reform brokered conditions where stock trades casually began in markets located in Shanghai, Shenzhen, Chengdu and several other cities in the early 1980s. This informal trading persisted until the formal establishment of modern stock exchanges in Shanghai and Shenzhen in December 1990. Historically, the securities market in China has been prone to fraud and corruption. In fact, there have been occasions where Chinese officials have been openly involved in the fraud and corruption that has taken place. To address these issues in its securities market, Chinese regulators sought assistance from abroad. Specifically, in April of 1994, China’s securities regulatory authority, the China Securities Regulatory Commission (“CSRC”), signed a Memorandum of Understanding with the United States Securities and Exchange Commission (“SEC”) in a move designed to obtain access to technical and enforcement assistance from its American counterpart. Pursuant to the guidance it received under the Memorandum of Understanding (“1994 MOU”), China implemented many of the policies used by the SEC in its securities regulation efforts. One example of such implementation was China’s revamping of its regulatory configuration from two independent levels (the CSRC and the Securities Commission of the State Council or “SCSC”) to a single-level structure in which the CSRC is subordinate to the SCSC. Another example is the Securities Law of the People’s Republic of China (“1998 Securities Law”), which implements many securities laws that are also used in America. China is the world’s second-largest economy in terms of nominal gross domestic product (GDP) and has the fourth-largest stock exchange in the world in terms of market capitalization. The United States is the largest economy in the world in terms of nominal GDP with the two largest stock exchanges in the world in terms of market capitalization. Because of these facts and China’s obtainment of significant technical and enforcement assistance from the United States in the area of securities law, this paper will address the issue of misappropriation of inside information from a comparative perspective by discussing the issue under both Chinese and American securities laws. After a general introduction to insider trading theories in Part I of this paper, Part II will discuss the American approach to regulating misappropriation and Part III will discuss China’s basic approach to the issue. Part IV will consider and answer the question of whether a breach of fiduciary duty requirement is the proper approach for regulating misappropriation or whether applying misappropriation liability without a fiduciary duty requirement is the better approach. Part V will provide suggested solutions for addressing the problems with both the American and Chinese approaches to regulating misappropriation.
In response to increasing calls for constitutional reform in The Republic of Turkey, and the escalating conflict in the Middle East, this paper aims to propose appropriate and effective emergency power provisions for Turkey’s recently revised constitution. Through the framing of the academic discipline of constitutional design and in light of the best practices literature regarding emergency powers provisions, this paper seeks to apply the knowledge provided by history and by scholars in the fields of comparative constitutional law and political science to the Republic of Turkey, while taking account of the past and present realities concerning military strength and executive power in the country. An understanding of Turkey’s important but precarious geopolitical position and its recent history of both military coups d’etat and authoritarian rule will inform a necessary analysis upon which the proposals will build.
Part I addresses the role of history in defining the ministerial exception. Beginning with a recount of the historical experience of the founding generation and recounts the later development of the doctrine of church autonomy in the Supreme Court. It then attempts to unite these pieces into a cohesive theory of the ministerial exception, grounded in the Religion Clauses of the First Amendment. Part II provides an overview of the judicial development of the ministerial exception in the lower federal courts, culminating in a discussion of the Hosanna-Tabor decision and its effects. Part III addresses the constitutional infirmity of allowing courts to judicially define what is, at base, a core concern of religious belief—the role of a religious messenger or “minister.” The focus then returns to the exception on the nature and role of religious institutions, providing helpful guidance and answering open questions about the exception’s scope.
Since Ronald Reagan appointed Justice Antonin Scalia to the U.S. Supreme Court in 1986, Scalia’s jurisprudence and judicial activity have been the subject of significant scholarly attention. The thesis of this article centers on the methodology adopted by the Court to create new unenumerated constitutional rights, and how Justice Scalia often rejects such methodology. In doing so, this article provides a critical analysis of the majority opinion in Obergefell v. Hodges, as well as the dissent of Justice Scalia. The article sheds light on the shortcomings of Justice Scalia's approach in his vicious attack on the Court for recognizing same-sex marriage as a constitutional right protected by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. However, this casts him as a pragmatic interpreter of the constitution more than an originalist. For the purposes of this article, my intention is not to digress into an analysis of the majority opinion in Obergefell. Instead, my primary focus will be to consider Justice Scalia's dissent. In doing so, I emphasize Scalia’s main disagreements with the majority before analyzing his dissent in an attempt to demonstrate how Justice Scalia, in several dissenting points, departed from originalist theory to a more pragmatic approach of constitutional construction.
On October 2011, The U.S. Congress finally passed the long-hauled implementing bill of Korea-U.S. FTA. This trade accord was the second largest trade deal in the U.S. since NAFTA. In Korea, it was a leading case of opening domestic market to major trade partner. Indeed, the U.S. is the second largest importing and the third largest exporting partner in Korea. During five years of negotiations from 2006 to 2011, both countries went through three phases of negotiations. The U.S. Congress urged another negotiation raising automobile and beef import issues representing the automobile and the farming industry. In contrast, Korea’s few key executives controlled the whole negotiation process without a framework concerning who can check trade power of the president representing the public. Thus, people were not given an opportunity to discuss pros and cons of the deal, and to make strategy for the trade-damaged group, and to incorporate their voices to negotiation process. As a result, as an argument of “Occupy Wall Street” protesters, Koreans were not able to find a legitimate entity representing their interests. They had no choice but to occupy the street. The fundamental fear behind Korea-U.S. FTA is bipolarization and foreseeable trade damage. With the large scale of Korea-U.S. FTA, this tension and anxiety has become aggravated. To make matters worse, Korea has high trade-GDP ratio so that the impact of a trade policy is even stronger. By analyzing this negotiation process and its consequence, this paper argues trade- oriented countries need more procedural democracy rather than efficiency in trade policy. A legal framework should include the way to promote public understanding and reflect stakeholders’ interest. In detail, the executive should notice the legislature in a timely manner when it enters negotiation. There should be a liaison group to communicate between the negotiators and the legislature. Meaningful consultation must be conducted in the committees having jurisdiction on trade issue. The executive must conduct an objective research for the effect of future trade deals. The government should provide a strategy for trade-damaged group. One time aid or compensation for damaged group is not ultimate solution. Rather, the strategy should focus on the structural reform. Facing foreign competition, trade-damaged sector should switch the direction towards more profitable industry. The government should support this process by providing benefits, such as tax benefit or deregulation when they attempt to explore new markets. Most importantly, the direct participation of citizens will contribute to the democracy in the trade policy.
In recent years, states have passed a record number of informed consent laws requiring physicians to provide certain information to patients prior to an abortion procedure. Regulations are becoming increasingly more restrictive, however, and their constitutionality has been debated amongst several circuits. As physician speech regulations are being challenged for violating phsicians First Amendment rights, courts are vastl differing in outcomes all due to different interpretations of constraints established in Casey. This Comment advocates for a more comprehensive approach to determine whether speech-and-display regulations impinge on First Amendment rights by discussing the appropriate legal framework when reviewing First Amendment issues. The discussion centers on a review of the First Amendment itself, a revisiting of Casey and its exploration of informed consent, and an examination of similar decisions by the Fourth, Fifth, and Eighth Circuits. This Comment argues that although the Fourth Circuit most accurately interpreted Casey, it inaptly reviewed the constitutionality of the regulation as a whole, leading to an inaccurate and less efficient conclusion. By using a more exhaustive analysis separating and reviewing each factor of the regulation on its own courts can pinpoint which sections of a regulation impinge on free speech rights instead of discarding or accepting the entire law. Ultimately, this Comment concludes that by employing this more comprehensive approach when reviewing speech-and-display requirements, courts will benefit from more consistent results and clearer boundaries that will reduce future litigation on the issue.
The Preamble to the United States Constitution begins with the invocation of the famous democratic underpinning: “We the People of the United States.” The unified power of the governed gives rise to governmental power. The Constitution goes on to state six objectives of democracy, two of which are to “establish Justice” and “promote the general Welfare.” This Article seeks to determine the properties of the power to pardon given its origins, historical uses, and present place in our Constitutional structure. Beyond detailing the pardon power’s history, legal genesis, and growth, the Article seeks to provide considerations, if not answers, to what is the pardon power’s existing authority.Article II, Section 2 (the Executive portion of the United States Constitution) grants the President of the United States the power to pardon wrongdoers. The pardon power has been living a lie for some time now. It is fashionable to represent it as different than how it was used in early English jurisprudence and understood by the American Constitution’s Founding Fathers. During and after the American Civil War, the United States Supreme Court rephrased the pardon power’s traditional definition into a jingoism that served the very important need to help heal the war-torn nation. The Court practiced yellow journalism or yellow decision making to achieve that objective. The Court’s purpose was admirable. Yet, to achieve that goal, it belied the power’s true characteristics. Many, including the Reconstruction Era Supreme Court, profess the pardon power to be unfettered and unbounded. That is not true; the pardon power is bounded. The purpose of this article is to expose that fiction surrounding the pardon power and to demonstrate its true nature.
Implementing technology into American classrooms has led and will continue to lead to numerous violations of student privacy. The Family Educational Rights and Privacy Act (FERPA)787 is now over forty years old and was crafted to bar the disclosure of personally identifiable information in student academic records to third parties without parental consent. However, FERPA has been considerably weakened to make it possible for school districts to share student data for a multitude of reasons. FERPA defines “educational records”788 as student information maintained by an educational agency or institution, or a party acting for or in that capacity. FERPA currently allows data to be disclosed to vendors, consultants, and contractors for administrative, instructional, or assessment purposes and to organizations or individuals without either notifying parents or gaining their consent.789 This paper discusses the rapid deterioration of FERPA, including the broadening of its current exceptions and the vague language it employs, as well as the current understanding of student privacy in the United States, including where schools have housed and currently house student record data and how such data is secured.
This article is the last piece in a series of articles written from the perspective of contemporary non-Western countries, arguing that it is open access in the economic sphere and the interconnected institutions in the areas of property right protection and contract enforcement, financial market, rule of law, and the accumulation of human resources that determine economic and human development. The case of China shows again that the theory of North and his colleagues overemphasizes the role of open access to political organizations or competitive democracy in economic development. While Singapore restricts the role of opposition parties, China strictly prohibits opposition parties. Both countries have developed relatively well. I have also analyzed the cases of India, Japan, and Brazil elsewhere to show that open access to political organizations does not play significant roles in economic development or even human development. These cases, however, are much less obvious in explaining my argument than the cases of Singapore and China. If my argument is correct, there are new ways of defining the roles of government in economic development. This article has also made some preliminary efforts in discussing the roles of government in economic development. The article, however, does not deal with questions about political regimes with the rule of one party or a dominant party. The case of China also has implications to the theory of the end of history. Future research can benefit from further attention to these issues.
Like many Americans across the country, Michigan residents have faced a staggering number of foreclosures in the last few years.2 In 2009, Laura Buttazzoni was one of the many Michigan homeowners facing the dire reality that she was going to lose her home.3 After Buttazzoni’s failed attempt to sell her home, her bank initiated a sheriff ’s sale in late 2009.4 After the statutory redemption period expired,5 Fannie Mae evicted Buttazzoni and relisted the home in 2011.6 Even though Buttazzoni’s home was foreclosed, sold at a sale, and relisted on the market—she was not done with the property. In June 2012, nearly three years after Buttazzoni’s eviction, Fannie Mae executed an “expungement affidavit,” which voided the 2009 sheriff ’s sale and reverted the mortgage back to Buttazzoni’s name.
Forty-six states and the U.S. Congress have passed funeral protest statutes to counter the notorious practices of the Westboro Baptist Church, but are the statutes constitutional?
The large food companies’ failure to internalize all the food production costs creates negative externalities and economic deficiencies in the food market. Government regulation to-date is insufficient to stop the externalization of costs. Poor eating habits of the general public promote such market failures and are controlled by misinformation, advertisements, and unhealthy foods. Regulatory laws, such as the Hazard Analysis Critical Control point Act (HACCP), the Poultry products Inspection Act (PPIA), and the Humane Methods of Slaughter Act were designed with so many legal loopholes, that these acts remain largely ineffective. The externalities of the food production industry affect the economy, the public’s health, the environment, but also the First Amendment Right of Free Speech. Veggie-libel laws passed in thirteen (13) states in the U.S. stifle the dissemination of the truth about the foods people eat. Consumer protection must be fueled from the inside out. Despite the public obsession with food and diet, people are ignorant of where their food comes from. Until the public’s awareness and concern is increased to a point where citizens and lawyers will use tort law to force the food producers to internalize the food production costs, the market will continue to fail.
The academy is now emphasizing inter-disciplinary scholarship and decision-making, especially the use of science to guide legal and political policy. This approach has many strengths, however, some caution is also appropriate. Using inter-disciplinary sources, this article discusses four inter-related problems with the scientific solution to social problems. First, and most central, science is about means, not ends. Second, expertise is often applied beyond its relevant field. Third, non-experts have difficulty judging competing experts. Fourth, experts' predictions are often wrong. The United States is presented as a horrible example of over-valuing expertise, specifically economic theory. In conditions of uncertainty, decision-makers are advised to prioritize people. Throughout, actors are reminded to keep a sense of proportion, i.e. is to recognize the humor of their own pretensions - Angels Can Fly Because They Take Themselves Lightly.
Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.
