SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Deselecting Biased Juries
No full textCritics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. The Court in the Batson cases only obliquely confronted that problem, because constitutional rulings cannot appropriately resolve it. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias
The Statement and Account Clause as a National Security Freedom of Information Act
No full textThe amount of the aggregate annual appropriations for the civilian and military intelligence programs is the only aspect of intelligence spending that is publicly disclosed. As a consequence, a great deal of information about how public funds are spent remains secret, potentially insulating from ordinary processes of political accountability not only waste, inefficiency, and abuse, but also what the public may regard as unwarranted intrusions on its privacy. This article offers a constitutional vehicle for greater transparency – the Constitution’s Statement and Account Clause, which provides that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” The scholarly literature contains no comprehensive treatment of the clause; Part I fills that gap, and contends that at least presumptively, information that is material to the public’s assessment of the manner in which the intelligence community spends public funds must be annually disclosed. Part II turns to the question of judicial enforcement, widely thought unavailable since the Supreme Court’s 1974 holding in United States v. Richardson that a lawsuit asserting taxpayer standing to obtain information about the CIA’s budget was nonjusticiable. Part II demonstrates that jurisprudential developments since Richardson limit its scope and suggest that it does not bar lawsuits brought by voters to enforce the Statement and Account Clause, and poses no obstacle to suits seeking disclosure of information about intelligence spending under the Freedom of Information Act (“FOIA”), even if they also contend that the FOIA’s exemption of information about intelligence matters from the statutory duty of disclosure is unconstitutional as applied to information that must be disclosed under the Statement and Account Claus
The E-Books Conspiracy: Crossing the Line Between Applying and Creating Law
No full textThis article responds to John Kirkwood’s Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy. Professor Kirkwood argued that in a monopsonistic market (i.e., one where there exists one powerful buyer and many less powerful sellers), or a market in which a buyer has significantly more power than the sellers, collusion on the part of the sellers might be justified, and ought to be a defense to antitrust claims, under certain conditions. This article summarizes Kirkwood’s proposed requirements for invoking this defense and argues that they are overly prescriptive, failing to allow certain instances of beneficial collusion, imposing costly burdens on the sellers, and providing the courts with a set of rules more akin to legislation than a method of interpreting existing antitrust law
What Can Corporations Teach Governments About Democratic Equality?
No full textDemocracies place great faith in the principle of one-person/one-vote. Business corporations and other private entities, in contrast, typically operate under the one-share/one-vote rule, allocating control in proportion to ownership. Why the difference? In times past, we might have cited the differing ends of public and private institutions. Whereas public democracies aim at promoting the general welfare of an entire political community, private entities aim at more specific goals, such as generating profits or managing a cooperative residence. As business entities have grown in size and in the range of services they provide, however, the distinction between public and private governance has grown blurry. Brooklyn’s Co-Op City, for instance, provides more than 50,000 shareholder-tenants with housing, utilities, stores, offices, schools, parks, security, and other services normally provided by a municipality. The largest homeowners association in the United States, Highlands Ranch, Colorado, provides over 30,000 homes and 90,000 residents with the functional equivalent of a whole town. Soon, entire “startup cities” may join residential cooperatives and homeowner associations in drawing their governing principles from private sources. How can private communities affirm the principles of democratic equality? By affording full protection to all rights holders, individuals and owners alike. The one-person/one-vote approach popular in political contexts works best at protecting the individual personal rights—freedoms of conscience, speech, and innumerable others—to which each of us has an equal claim. Corporate law’s one-share/one-vote rule works best at protecting the property rights of those who invest in a commonly owned community. This paper explains why a polity should offer both corrective and constructive democracy. Residents exercise corrective democracy in defense of their individual rights by submitting officials and laws to popular veto. Shareholders exercise constructive democracy in defense of their investments, choosing directors and managing polity governance. The result: a double democracy that combines the best features of public and private governance to give equal treatment to both the personal rights of individual residents and the property rights of shareholder owners. Respect for democratic equality demands nothing less
Seventeen Years Since the Sunset: The Expiration of 245(i) and Its Effect on U.S. Citizens Married to Undocumented Immigrants
No full textOne of the most pervasive myths of U.S. immigration law is that marriage to a U.S. citizen confers citizenship, or at least some form of legal status, upon a foreign national. It is an intuitive notion: that a U.S. citizen enjoys, as part of his or her package of privileges and protections, the right to live anywhere in the United States with a spouse of his or her choosing, and to confer automatically some form of legal status upon that spouse. It comes as a surprise and an affront to many U.S. citizens that their immigration laws do not always comport with this notion. The fact is that no marriage-based adjustment of a foreign national’s immigration status occurs automatically. And significant problems arise for families in which the foreign national spouse entered the United States without inspection. Under current immigration law, foreign nationals who entered the United States without inspection are ineligible to apply for lawful permanent residency in the United States, irrespective of the existence of an approved petition submitted by a U.S. citizen spouse. Such individuals must instead depart the United States and apply for an immigrant visa abroad. This is much more than an inconvenience involving travel and temporary separation from loved ones. Another immigration provision bars any foreign national who has been unlawfully present in the United States for one year or longer from reentering the United States for ten years upon his or her departure from the United States. Only a waiver granted on account of “extreme hardship” to the U.S. citizen spouse can overcome the bar. This Article reviews and critiques the reentry bars and advocates for the resurrection of section 245(i) of the Immigration and Nationality Act, which, prior to its expiration in 1998, allowed undocumented immigrants who married U.S. citizens to adjust their status in the United States rather than have to depart the United States and apply for an immigrant visa abroad. The Article argues that the combined effects of the reentry bars and the unavailability of 245(i) upon the current generation of U.S. citizens seeking to sponsor undocumented immigrant spouses are overly harsh and constitutionally suspect. The Article concludes that truly comprehensive immigration reform legislation must include a permanent reinstatement of 245(i) for immediate relatives of U.S. citizens
Economics-Based Environmentalism in the Fourth Generation of Environmental Law
No full textEnvironmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as economics-based environmentalism. Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, prescriptive rules that lack the adaptability and tailored effect of economics-based rules. Economics-based environmentalism explains that environmental protection can be accomplished if the government sets rules that allow private markets to price resources, establishes enforceable rights in those resources, and allows individuals to freely trade such rights. To the extent that the state is unwilling to surrender substantial control to private actors and the market, economics-based environmentalism calls for the injection of these economic standards into the development of state-based regulatory law, hoping that those state laws will try to harness the economic ideas. One proposal in the article calls for embedding in law a more stringent requirement that agencies prove the existence of market failure and the exhaustion of economic alternatives to governmental regulation before being allowed to proceed with any top-down, interventionist governmental regulation. The last portion of the article focuses on theories from law and economics, including those related to the self-perpetuating behavior of bureaucracies, public choice models of legislation and regulation, and capture theory as barriers to any effective reform in the emerging fourth generation of environmental law – whether it be those reforms proposed by others or even those suggested earlier in the article
