SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Postracialism: Race After Exclusion
No full textThis article examines a profound shift in the concept of race. Although race is widely viewed as socially constructed through continuous struggles over meaning, its content has remained remarkably stable over time. Race, since the nation’s founding, has been defined mainly by three social conditions: difference, denigration, and exclusion. Among these, exclusion has been central, driving the effort to differentiate and denigrate in order to justify exclusion under the guise of utility rather than white supremacy. Especially after the ascendancy of multiculturalism in the 1990s, however, race has come to be defined by another set of social conditions. They are (in corresponding order) identity, equality, and inclusion. Under this new conception of race, identity is primary; it is the logic of identity that demands and necessitates both equality and inclusion in society. The first aim of this article is to explain this turn in the meaning of race – a turn that has taken so long and is so significant that it may well be appropriate to describe it as post-racial. The second aim of this article is to consider the implications of the new conception of race to progressive politics, which may be obstructed by the fluidity of identity and the indeterminacy of equality. Inclusion, on the other hand, is a more concrete condition that can serve as a political goal and also clarify the discourse surrounding identity and equality. Inclusion remains undertheorized, however, and this article concludes with an initial effort towards addressing the deficit by identifying five types of racially problematic inclusion: conditional inclusion, limited inclusion, imperfect inclusion, revolving door inclusion, and overinclusion
The Story of Clark: The Incredible Shrinking Insanity Defense
No full textThis chapter of Criminal Law Stories (Weisberg & Coker, eds. 2010) tells the story of Clark v. Arizona, the case of a schizophrenic teenager convicted of murdering a police officer under the belief that the officer was a hostile space alien. This chapter discusses the significance of the Clark case within the historical context of the insanity defense, especially in light of the reforms that occurred across the country after John Hinckley, Jr.’s acquittal in 1982. It also examines the interplay between insanity and other legal doctrines of criminal responsibility that were implicated at Eric Clark’s trial, including mens rea, diminished responsibility, and the guilty-but-mentally-ill verdict
The Property Platform in Anglo-American Law and the Primacy of the Property Concept
No full textThis Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, and the sic utere maxim—normally segregated to our discussions of property law but that should be considered equally necessary to contract and tort law. In examining these property concepts, this Article goes further to contend that ownership in the self has a vital place in the property discussion. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. The rules in all three develop on their own but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, so too can we then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject like contract or tort. But understanding that the property concept is at the base of all three legal species—property, contract and tort—is nonetheless the necessary starting point for an understanding of any of them
LAW AND NEGOTIATION: NECESSARY PARTNERS OR STRANGE BEDFELLOWS?
No full textTo what degree does legal authority dictate the outcomes of negotiations? Scholars have discussed the issue, and law students argue about it in their negotiation classes. A survey of practicing lawyers reveals that knowing the law is an important part of the preparation for negotiation, but that legal authority is not the primary determinant of negotiated outcomes in practice. Financial constraints, bargaining power, and negotiating skill are all reported as having a greater effect on negotiated outcomes than the law
Law and Negotiation: Necessary Partners or Strange Bedfellows?
No full textHow important is legal authority to the negotiation process? Scholars have discussed this issue and law students argue about it in negotiations classes. A survey of practicing lawyers reveals that law is very important to preparation for negotiation, but less so as a determinant of negotiated outcomes. Factors such as financial constraints, bargaining power, and negotiating skill seem to drive negotiated results in practice more than legal authority
Law and Negotiation: Necessary Partners or Strange Bedfellows?
No full textHow important is legal authority to the negotiation process? Scholars have discussed this issue and law students argue about it in negotiations classes. A survey of practicing lawyers reveals that law is very important to preparation for negotiation, but less so as a determinant of negotiated outcomes. Factors such as financial constraints, bargaining power, and negotiating skill seem to drive negotiated results in practice more than legal authorit
The Constitution as if Consent Mattered
No full textLibertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory. This theory maximizes the consent of the governed and, thus, the justifiability of constitutional authority