SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Pride & Property: An Interdisciplinary Analysis of Their Symbiotic Relationship
No full textPride and property are mutually reinforcing, symbiotic concepts through which individuals express their identity in a biologically, economically, and psychologically driven manner that generates evolutionarily advantageous conditions. This Article is the first to extensively examine the correlative components of pride and property ownership. It is an interdisciplinary treatment of pride and property — engaging with law, economics, psychology, evolutionary biology, evolutionary psychology, and philosophy. The grossly under-studied “authentic”, achievement-oriented, and motivational variety of pride (as contrasted with the much-vilified “hubristic” kind) has recently been heralded as perhaps the most important human emotion for evolutionary purposes. The Article explains that authentic pride is adaptive, functional, and manifests itself in evolutionarily beneficial ways — including through its interaction with property. The Article also outlines the mechanics of a pride based-utility function.Property has acquisitional and expressive functions, allowing ownership to be both the repository of pride-based utility and also useful as a vehicle through which evolutionarily-beneficial authentic pride can be expressed. Property can act as a “pride display” that signals status-deservedness to the greater community, enhancing the prospects of group acceptance critical to evolutionary fitness. Although literature has discussed property as integrated with one’s self-identity and personhood, and while recent research on pride has recognized its fundamental relationship to the self, very little if any existing analysis ties those two strands together to analyze pride in property as identity development and to evaluate the motivational role pride plays in the acquisition, maintenance, and improvement of property. This Article seeks to fill that void. It explores ways we might maximize the influence of the utility-enhancing aspects of the pride emotion and examines how we can find new appreciation for the role that identity and our emotions play in how we experience, manage, govern, and protect property
Introduction to Constraining the Executive
No full textThe essays in this symposium illuminate aspects of the task of keeping the executive branch within its constitutionally appointed boundaries. The symposium was conceived before the 2016 elections, so its plan was not directed toward the current president. Nevertheless, it is inescapable that, writing after those elections, the authors took recent developments into account. The lessons to be learned from these essays, however, have more permanent application than simply for the immediate present. In this introduction, I review the articles of the symposium hoping to highlight the valuable contribution to separation of powers jurisprudence that each offers for the long term. This symposium focuses on means of constraining the executive. There is, of course, a vibrant recent literature on what constitutes the kind of executive overreach in need of being constrained. This symposium takes as given that there have been, and will be, instances of executive action or inaction needing restraint (without becoming embroiled in the specifics of any specific example), and turns its attention to what institutional remedies may be available
Capital-Sentencing Law and the New Conservative Court
No full textWith the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with—this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current limitations become a distinct possibility. And that is where we are today.This essay aims to show that the true core of what the Eighth Amendment demands is not consistency but a “deserts-limitation”—a requirement that no person receive the death penalty who does not deserve it. That is a goal on which even conservatives could agree. It is also a goal that many of the existing death penalty doctrines help to fulfill. Thus, this essay aims to explain why a conservative Court should not repudiate the heart of existing Eighth Amendment jurisprudence on capital selection
Public Lands: Pride, Place, Proximity & Power
No full textWhere to place power regarding the ownership and management of public lands is a matter of longstanding debate, yet has been energized to a new degree with the advent of the Trump Administration. This essay does not seek to resolve complicated and intense matters within this debate nor propose any specific, best solutions to competing claims for proper placement of power. What this Essay does aim to do is explain some of the key metrics that should not be missed in the debates. These are metrics which could be advanced to support greater decentralization of power over public lands and that should be addressed if one is to make a valid claim for a more centralized approach to power.Among the factors discussed in the Essay that make trusting decentralized control more acceptable are:(1) the pride individuals have in the resources they control, with which they identify, or from which their personal identity is enhanced;(2) the attachment to place that is exhibited by individuals who feel a connection and responsibility with a particular place, including geographic space; and(3) the relative benefits of proximity to enriching the potency of the place, pride, and other conservation-attentive characteristics of caring for public lands.The Essay focuses on what we know from property ownership as a means of understanding ways to maximize ownership-like management and control responsibilities to enhance the multiple values of public lands
Constitutional Clause Aggregation and the Marijuana Crimes
No full textAn important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. Neither the Cruel and Unusual Punishment Clause, the Fourth Amendment, the Due Process Clause nor the Equal Protection Clause can justify such a protection, and that would remain true even when most states have legalized. But, could another theory justify this constitutional right?A second important and topical legal question concerns when two or more rights-based clauses in the Constitution can combine to invalidate government action that none of the clauses could disallow on their own. The Supreme Court generally has declined to recognize multiple-clause rights. But, in the past, it occasionally seemed to endorse the approach. And, recently, in Obergefell v Hodges, 135 S.Ct. 2584 (2015), it gave new impetus to the idea by declaring the existence of a “synergy” between the Due Process and Equal Protection Clauses that it asserted had helped explain its acknowledgment of certain rights previously and that purportedly helped lead, in the case at hand, to its acknowledgment of a right to same-sex marriage. In consequence, enthusiasm has again intensified over the notion that rights-based clause aggregation can expand constitutional protections. But, is clause aggregation only rhetoric offered to justify something the Court would have done anyway under a single clause or can it sometimes really matter? And, if so, when?This Article puts both problems in play by asking this question: After a super-majority of states legalize, could multiple clauses together reveal a constitutional right to engage in certain recreational, marijuana activities? The Article answers with cautious affirmance: Clause aggregation could help justify such a constitutional right, in tightly limited circumstances. But, the Article also notes that many of the contours remain undeveloped in the Supreme Court’s jurisprudence on rights-based clause aggregation, complicating any effort to predict whether and how the Justices would apply it in the future to recreational marijuana
ABA Learning Outcomes Compliance and the Real Estate Course Trajectory – Reflections of an Outgoing Associate Dean
No full textCompulsion
No full textThe lack of a definition of compulsion plagues Fifth Amendment jurisprudence and scholarship, producing analytical confusion and worse. Surprisingly, neither Fifth Amendment jurisprudence nor scholarship offers a definition of what it means to “compel” a person to self-incriminate, even though there the concept of compulsion is critical to an understanding of the constitutional prohibition on compelled self-incrimination. The Supreme Court has occasionally referred to an overborne-will test for compulsion, but that test is of dubious provenance and difficult to apply. The Court frequently ignores the overborne-will test, and it cannot be reconciled with a good deal of Fifth Amendment doctrine. Starting with the paradigm of compulsion that gave rise to the Fifth Amendment, this article offers a definition of compulsion that can be defended on both originalist and nonoriginalist grounds: An official undertaking to induce a witness to provide evidence by threat of punitive sanctions. This definition explains large swaths of Fifth Amendment doctrine that courts and commentators alike find confusing or indefensible, and facilitates normative assessments of doctrine as well. It also charts a course for future development of Fifth Amendment law. The definition of compulsion, for example, suggests that Fifth Amendment protections apply whenever a suspect is confronted with a threat of punitive sanctions unless he submits to questioning, and debate over the propriety of asserted Fifth Amendment waivers and associated interrogation tactics should focus on whether the suspect is confronted with a threat of punitive sanctions beyond those that could be imposed as a result of conviction at a fair trial. Defining compulsion, moreover, illustrates the manner in which the Fifth Amendment limits inquisitorialism in the criminal process
The Right Right to Environmental Protection: What We Can Discern from the American and Indian Constitutional Experience
No full textThe best legal mechanism to protect the environment re-mains a complex and contentious issue. Many normative questions with practical implications remain. Should the legal response be in the foundational document of most legal systems, the Constitution? If so, should a Constitution create a specific right to environmental protection, or are statutory responses to address environmental problems adequate? If one considers environmental protection globally, both constitutional and legislative responses to environmental protection prevail. Yet, neither alone is adequate. Environmental legislation may not cater to individual rights, especially when legislated from a utilitarian platform. A constitutional right to environmental protection can protect individuals from environmental harm, but does not necessarily correlate to better or stronger environmental protection. Consider the examples of the United States and India
The Holocaust at Nuremberg: What the Record Reveals
No full textHistorians continue to debate how much of the International Military Tribunal (IMT) proceedings at Nuremberg concerned the Holocaust. The official goal of the Allies in Europe was to end the war by militarily defeating Nazi Germany. Stopping the atrocities was of secondary importance. Once the war ended and the top Nazis were put on trial at Nuremberg, they were not tried for the mass murder of the Jews. Chief Nuremberg prosecutor Justice Robert Jackson announced at trial that the supreme crime committed by the twenty-one German defendants on the dock was the crime of waging aggressive war. This article aims to show that during the IMT trial, the genocide of the Jews—today known by the term Holocaust—was a running theme of the trial. To illustrate the significance of the subject of Jewish persecution at the IMT, the article examines actual testimony and other evidence introduced by the prosecution during each stage of the trial. Those who mine the IMT proceedings will find much about the fate of the Jews in territories under Nazi occupation. The historiography of the Holocaust began at Nuremberg
The Challenge of Inclusion
No full textThe creation of diverse and inclusive communities has long been one of American housing policy’s most important commitments. The United States Supreme Court recently reaffirmed this commitment in an important decision that interpreted the federal Fair Housing Act to require that municipalities avoid housing policies with a discriminatory impact on protected classes. Following the Court’s decision, the Department of Housing and Urban Development enacted groundbreaking new regulations requiring communities to take affirmative steps to provide housing for all protected groups. In practice, however, realizing the goal of inclusion is likely to prove exceedingly difficult, as efforts to create diverse communities often stir intense political opposition from existing homeowners. In consequence, scholarly and popular media accounts typically vilify these homeowners as selfish xenophobes. This Article presents a more complex picture. Though inclusion represents our society’s highest aspiration, exclusion is both necessary and desirable in any conception of community. I examine research in several disciplines, including economics, sociology, and political theory, and find in each discipline powerful arguments supporting a community’s power to exclude. Nevertheless, this Article contends that although exclusion is indispensable to the idea of community, the arguments in favor of exclusion, like the arguments against it, are overstated. It is possible to create communities that are diverse and inclusive, but doing so will, paradoxically, require some concessions to exclusion. The intractable question, often elided by the false choice between a mosaic of segregated “urban villages” and a “melting pot” that dissolves all differences, is how to balance the aspiration for inclusion against the practical need for exclusion. This Article concludes by suggesting some ways to compromise between inclusion and exclusion that may help make inclusive communities a reality