SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Bubbles (Or, Some Reflections on the Basic Laws of Human Relations)
No full textVery few of us want to live in the absolute isolation of a “bubble.” Most humans cherish the capacity to interact with their external environment even when we know that, at times, such exposure makes us susceptible to all sorts of negative effects ranging from mere annoyance to the contraction of deadly illnesses. Yet, because there are so many positive elements and benefits from that interaction and exposure, we often are willing to take the bitter with the sweet. We tolerate much external exposure to bad things in order to take advantage of the collisions with the good things that our outer environment offers. Yet, at the same time, to one extent or another, we all live with, and choose to cherish at times, some metaphorical, protective bubble around us, and it is the law that helps to define that bubble’s contours and provide its relative strength against those forces that might intrude upon it. This Essay understands the right to exclude and the control of externalities as far more than a real property issue, the area of law where it is normally discussed. Most laws regarding human relations involve these same concepts. Individuals have the right to exercise that dominion by doing what they wish with this property in the self and in things, while keeping people and things out (the right to exclude) or letting people and things in (the right to include, consent). The law struggles to formulate rules, including those related to the boundaries of property or the integrity of the body, to protect these bubbles and to define unacceptable externalities and remediable wrongs. This Essay seeks to identify the difficult choices we must make in deciding which intrusions we must accept as normal, inconvenient incidents of life and which we decide to deem externalities against which we should institute enforceable legal rules and protections
The Implications of Incorporating the Eighth Amendment Prohibition on Excessive Bail
No full textIn its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.
I contend that incorporation solves two long-standing riddles about the clause. First, does it confer a right to bail? And, second, when bail is required, are the permissible goals of bail defined by construction of the clause itself? There has long been serious doubt that the clause grants any right to bail or defines any measure of excessiveness that exists apart from legislative direction. On this view, the clause is only a directive to judicial officers to respect the separation of powers by honoring bail legislation. However, I urge that incorporation implies that the clause must accomplish much more than this it if is to impose the kind of fundamentally important limits on state government that warrant incorporation. The clause, through construction, must grant a right to bail in broad circumstances and define the measure of excessiveness.
I also contend that incorporation calls for the Court to resolve two additional questions about the bail clause that it otherwise could have avoided. The issues concern the nature of the evidence that trial courts should consider in deciding bail questions and the standard that reviewing courts should apply in passing on the decisions of trial courts setting bond. On the first question, I contend that individualized consideration of the character, record and crime of an arrestee should generally inform bail decisions, which weighs against over-reliance on bail schedules. On the second question, I contend that the standard of review generally should ask whether a chosen bail amount is substantially more burdensome than required to reasonably assure the reappearance of the defendant. These conclusions balance the fundamental importance of the bail clause in safeguarding liberty and justice against several competing interests of government.
Finally, I argue that incorporation calls for rethinking the justiciability of excessive-bail claims on review of criminal convictions after trial. The prevailing view apparently is that the rights to bail and non-excessiveness are purely substantive. Denial is thought not to affect the validity of the trial. Based on this view and the notion that the rights end at the point of conviction, few cases requiring interpretation of the clause survive for presentation to the Supreme Court. I contend, however, that the rights to bail and non-excessiveness are not only substantive but procedural, because improper pretrial detention can prejudice the defendant at trial. Honoring the procedural aspect of the protections would acknowledge the full significance of unlawful detention for arrestees and enable the Court to receive more cases through which it could construct and enforce the clause
Constituencies and Contemporaneousness in Reason-Giving: Thoughts and Direction After T-Mobile
No full textThis Article presents a framework for reason giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with agency decisions where multiple constituencies (including regulated entities) and not just the courts (and judiciary review) are served and respected as consumers of the reasons. The Article postulates that the January 2015 decision by the U.S. Supreme Court in the case of T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decisionmaking. There are some fundamental yet very understated lessons in the T-Mobile opinion that prompt further attention and the fuller justification that this Article’s analysis provides. The predominate focus in reason giving by courts and scholars has been on when the agency must generate or develop reasons, not necessarily on when they must share them with the public. And courts and scholars have focused significantly on how reasons facilitate judicial review, but not necessarily so much on who else can demand the contemporaneous production of reasons associated with an agency decision. This Article’s framework seeks to broaden the focus. It calls for rules that mandate contemporaneous generation and contemporaneous revelation of reasons for immediate review by all interested constituencies at the time of decision. The two primary conditions on reason giving recognized in T-Mobile should receive broad implementation across the field of administrative law. Contemporaneous production of reasons with an eye toward cooperatively informing multiple constituencies who require, demand, or simply benefit from being able to access agency reasons works to better serve the administration of our laws and improve the quality of the rules generated
The (Not So Dire) Future of the Necessary and Proper Clause after National Federation of Independent Business v. Sebelius
No full textNational Federation of Independent Business v. Sebelius (“NFIB”) has generated much discussion, but too little of it has focused deeply on whether, and the extent to which, the decision will limit the scope of the Necessary and Proper Clause. Following NFIB, many observers doubtless found themselves asking the same questions they were asking in 1995 after the Supreme Court’s decision in United States v. Lopez drew a line in the sand after sixty years of imposing virtually no limits on the federal commerce power: Was the Court really serious about imposing vigorous federalism limits on one of Congress’s biggest powers? This article seeks to answer that question, arguing that NFIB will have a relatively minor overall impact on the scope of the necessary and proper power, even if the Court remains committed to judicial enforcement of federalism. At first blush, it appeared that NFIB could have a dramatic impact, as it seemed to apply new and stringent limits on the necessary and proper power. While the Court recently warned that federalism limits the reach of the necessary and proper power, it had not, until NFIB, gone as far as suggesting that Congress may not regulate indirectly through the necessary and proper power that which it may not regulate directly through an enumerated power. Nevertheless, this article explains that, viewed in the light of decisions handed down leading up to and following NFIB, the decision does not signal a drastic change in doctrine. The Necessary and Proper Clause was not the target of the Court’s federalism ire in NFIB, but rather was the victim of the Supreme Court’s continuing federalism campaign to rein in the federal commerce power. As a result, it should be business as usual (deference to Congress) in cases where Congress seeks to enforce an enumerated power other than commerce, while use of the power in combination with the commerce power likely will trigger closer scrutiny. And if the power is used so aggressively as to transform the Necessary and Proper Clause into a general police power, then it is game over, no matter what enumerated power Congress is trying to enforce
The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control
No full textSecond Amendment jurisprudence was revolutionized by the Supreme Court\u27s 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the original meaning of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment\u27s preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control