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To state the obvious, we live in a world that is awash in information. Discoveries of new scientific information occur daily in the laboratories of the world. The Facebook accounts of millions of teenagers contain information about the love lives of their friends. Google traces the search information of its subscribers. Supermarkets use personalized discount cards to trace the purchasing preferences of their customers. The National Security Agency (NSA) has been building a one-million-square-foot data and supercomputing center in Utah, which is expected to intercept and store much of the world’s Internet communication for decryption and analysis. States maintain driver, tax, and voter records. All of these records contain information that can yield profit for some and embarrassment for others.
The First Amendment to the U.S. Constitution dictates access to and dissemination of this information, whereas the Fourth Amendment limits such access and dissemination. Additionally, common-law doctrines of privacy, publicity, and defamation apply to this information, as do copyright, patent, and trademark law. State and federal legislatures race to regulate the collection, storage, and dissemination of this data and information in the public interest. This Article will review recent developments in the constitutional treatment of access to data and information, will comment on an illustrative group of statutory and common-law developments, and will discuss a number of current noteworthy controversies. . . .
Since its founding in 1878 the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives.
It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level.
The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power. Not until the 1970s did the ABA experience any real challenge to its dominance.
The Watergate scandal harmed the bar’s reputation when President Nixon’s prestigious lawyers committed crimes that subverted governmental authority. Furthermore, the Supreme Court found a number of the ABA’s regulations of lawyer professionalism to be illegal.
The accession of Deng Xiaoping to leadership in China after the death of Mao Zedong in 1978 provided the impetus for the revival of China’s legal system. That commitment to build a rule of law has contributed to China’s current phenomenal growth. More recently, China’s entry into the World Trade Organization required a commitment to transparency in the lawmaking process, procedures for challenging administrative action, and judicial independence. This article will attempt to assess the progress of a part of that project: the creation, virtually from scratch, of a trained legal profession over the past thirty years.
The Western notion of enforcing one’s legal rights through litigation does not sit well with the Chinese. Not only is the concept of a legal right a foreign concept, but the pursuit of self-interest through adverse litigation is at odds with the paramount virtue of social harmony. It is difficult for the average Chinese person to conceive of a court as other than a place where bad people go or where bad things happen to people at the hands of government. The topdown view of law as an instrument of government with citizens as the objects of legal regulation remains influential in China today. Courts generally do not welcome litigation and often try to discourage it. Far more than in many other systems, the Chinese legal system is willing to forgo the enforcement of rights when other pressing values seem to be at stake, to the point where it might be more accurate to say that the system recognizes interests more than rights. . . .
In McConnell v. FEC, the Supreme Court largely rejected the plaintiffs claims that the Bipartisan Campaign Reform Act of 2002 (BCRA), commonly known as McCain-Feingold, violated the First Amendment. In deferring to the congressional judgment declaring additional restrictions on the financing of campaigns for federal office necessary, the Court read its own First Amendment case law narrowly, but adhered to the fundamentals laid down in Buckley v. Valeo, its landmark precedent from 1976. In so doing, the Court once again left federal campaign finance law as a hodge-podge of limitations and loopholes. Moreover, a general lack of enthusiasm from Congress, the President, the courts, and the Federal Election Commission (FEC) assures the continued influence of big money in the national political scene. . . .