SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The Jewel in the Crown: Can India’s Strict Liability Doctrine Deepen Our Understanding of Tort Law Theory?
No full textThe evolution of tort law in former British colonies is not only fascinating; it also holds clues into the age old question of whether law or any discrete area of law can be universal. The exploration into doctrinal divergences and convergences is part of a larger quest: to capture the theoretical underpinnings of tort law and, in that process, discover the universal core of tort law, if there is one. For example, is the central purpose of tort law efficient resource allocation, corrective justice, or simply a compensatory system for wrongs? To answer these questions, theorists have generally considered tort law in relatively wealthy jurisdictions that have a fairly robust tort law system: the United States of America, Australia, Canada, and the United Kingdom. However, there is no perspective from a developing country. This article provides a perspective from one developing country, India
The President’s Pen and the Bureaucrat’s Fiefdom
No full textPerhaps spurred by aggressive use of executive orders and “lawmaking” by administrative agencies by the last couple of presidential administrations, several Justices on the Supreme Court have recently expressed concern that the Court’s deference doctrines have undermined core separation of powers constitutional principles. This article explores those Justice’s invitation to revisit those deference doctrines and some of the executive actions that have prompted the concern
Executive Action and Nonaction
No full textAction by the executive can be challenged by a party with standing, and there is usually no shortage of such parties. The executive’s failure to act, however, is much more difficult to submit to judicial scrutiny. I propose that standards for reviewing such nonaction are available under precedent of the Administrative Procedure Act, and under severability analysis. That is, a reviewing court can determine whether the executive’s failure to enforce part of a law leaves the rest of the law to operate meaningfully as Congress intended (akin to severability analysis), and APA precedent can guide courts to determine whether nonaction was “not in accordance with law.” Where the beneficiary of executive action is clearly identifiable, such a party should have standing to criticize nonaction. Where not, the legislature as an institution should have standing. A remedy is difficult to craft in the context of nonaction, so declaratory relief may be the best that can be achieved, but it is still potentially valuable. Presented with a determination by the third branch that it has failed to see that the laws are faithfully enforced, the second branch might reverse its course and begin to enforce a law. If not, impeachment for nonaction could be the ultimate remedy. A judicial determination that any constitutional reasons for nonaction are invalid would assist the House in its impeachment function, even if no impeachment motion is actually brought: just as legislative bodies’ oversight functions can be assisted by a court enforcing a subpoena for relevant evidence of executive behavior, as part of the legislative branch’s oversight power, even in the absence of a specific piece of legislation that results. The Court’s decision last term in Arizona Redistricting Commission has revived the doctrine of legislative standing, increasing the likelihood that a declaratory judgment action brought by the legislature against the executive for nonaction would be held justiciable. Recent examples of executive nonaction are: President Obama’s decision not to deport categories of individuals and (though too recent to be included in this article) President Trump’s decision not to collect the Affordable Care Act tax from individuals who did not obtain health insurance as required under that Act
Assessing Academic Law Libraries\u27 Performance and Implementing Change: The Reorganization of a Law Library
No full textThe confluence of the crisis in legal education and the evolution of legal information presents the perfect opportunity for law schools to actively decide what the role of the law library should be, and to make considered, deliberate changes based on the best interests of the institution. The Dale E. Fowler School of Law at Chapman University recognized the opportunity to strengthen the institution by creating, essentially, a brand new law library. When I started at Chapman, I began a comprehensive assessment of law library operations; after six months, I recommended a complete reorganization, including the budget, collection, staff, and services. The reorganization was designed to be budget neutral; it is worth noting that even with hiring additional staff, purchasing new databases, and despite the exorbitant inflation rate for legal materials, our total library expenditures decreased by 16% from fiscal year 2010-11 to 2015-16. The purpose of this article is to provide law school deans with information to help them work with library directors to create the best library possible for their institutions without additional funding
Preemption, Federalism, and Local Democracy
No full textThroughout the country, city residents are coming to the uncomfortable realization that they have no right to local democracy. In just the past few years, state legislatures have blocked local governments from enacting all kinds of legislation, including ordinances dealing with smoking, hydraulic fracturing, the minimum wage, gun control, nutrition, civil rights, immigration, plastic bags, and more. The sheer volume of local enactments being “preempted” by state legislation has reached nearly epidemic proportions. One watchdog organization reported that 2015 was the most popular year for preemption in American history, with 29 states considering comprehensive bills to preempt all manner of local legislation.Though it is hardly unprecedented for states to preempt local legislation, the breadth and ambition of the recent preemption efforts have rarely been seen in American history. They are the result of a profound political realignment within many states that is having reverberations throughout our democratic system and undermining many assumptions about the nature of our democracy. Preemption has become more prevalent because cities are now overwhelmingly Democratic while state legislatures, dominated by representatives of rural areas, are overwhelmingly Republican. The vertical relationship between cities and states is now an outlet for a partisan conflict between rural and urban areas, of which preemption is one manifestation.This paper uses the lens of preemption to examine the broader political trends it exemplifies and gauge the capacity of our democratic institutions to withstand them. I argue that the nearly perfect alignment of geographic divisions with partisan affiliations has raised the stakes of political conflict between cities and states and opened up important questions about the future of liberal democracy. The “Madisonian” vision of a democratic society characterized by ever-shifting coalitions has been threatened as heightened partisanship, geographic segregation, and the cultural and economic impacts of globalization have hardened the division between urban Democrats and rural Republicans into a zero-sum conflict between competing social groups. Preemption is one front in this conflict, as rural Republicans seek to negate the cultural and economic gains they see urban Democrats making at their own expense. A possible route out of this conflict is federalism, which has long been a tool for accommodating the competing claims of different groups within the framework of the nation-state. However, intrastate federalism has always been weak because courts are wary of recognizing group rights at the sub-state level. The current rash of preemption is a direct result. Although I conclude that a stronger intrastate federalism may be necessary in an age of deepening urban/rural conflict, I also doubt that we can count on the judiciary to save us from this predicament. Ultimately, the citizenry must decide how much it values local democracy
I Share, Therefore It\u27s Mine
No full textUniquely interconnecting lessons from law, psychology, and economics, this article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to the sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals, then, is that the property system is well suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So, too, does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy
Pride and Prejudice in U.S. Trade
No full textTrade has become a highly contentious issue in the United States, as major Presidential candidates line up to denounce trade as “fraudulent” and “disastrous for the American worker.” Populism from both the left and tfhe right has played into nativist fears of openness, including fears of open economies and free trade. Trade is equated with job loss and trade deficit, caused by foreigners who cheat and don’t play fair. Much of the corrosive anti-trade rhetoric has taken on nationalist overtones and is regularly targeted against China and Mexico and other countries that make up the non-white global poor. The United States also has trade deficits with the European Union generally and Germany particularly, for example, and yet Germany has escaped American wrath and derision. What underlies the current trade controversy in the United States is the belief that jobs, particularly manufacturing ones, should not be allowed to leave the United States and that if they do, trade is generally bad and particularly bad if shifted to apparently undeserving countries like Mexico, China, and India. But the controversy is not just about job loss. Job loss is but a proxy for a resurgent economic nationalism at odds with the international order established by the United States after World War II. Indeed, technology has phased out millions of jobs in both the manufacturing and service sectors, yet technology is not demonized. The Article makes two main points – the need to zoom in and understand how the nature of trade has changed and the need to zoom out and see trade broadly, as intertwined with U.S. national security and dollar supremacy. First, zooming in and looking at trade deeply show that 80 percent of world trade is characterized by interconnected global supply chains. Production is integrated vertically across different countries. It is fragmented, task by task, via integrated chains and involves “multilocation” processes transcending national territory. Yet trade continues to be conceptualized in old terms – single-country or “monolocation” production. This antiquated framework has resulted in misleading trade figures that overstate import figures and the trade deficit and misrepresent the relationship between imports and job loss, further fueling nationalist backlash. The iconic Apple iPhone, for example, is made everywhere and thus nowhere. U.S. import statistics as to the true origin of the product are misleading. The design, development and marketing, as well as the software creation, are done by Apple in the United States. But the parts that make up the iPhone are made everywhere: Japan, Netherlands, Korea, Germany, the United States and elsewhere. These parts are finally assembled by a Taiwanese company in Shenzhen, China. The iPhone is labeled “Made in China” because China is the final assembly site. The entire unit cost of 6.50 per unit or about 3.6 percent of the total cost. Such distortions facilitate the demonization of trade and trade with China in particular, and paint a gloom-and-doom picture of supposed U.S. economic decline that is more fiction than fact. In a world of vertical integration, U.S. imports are also likely to contain many parts made in the United States by U.S. workers, which means that a large portion of the money U.S. consumers spend on such imports actually goes to U.S. companies and workers. Moreover, exports and imports are two sides of the same coins. The Article shows how restricting imports will end up harming the much prized export sector. Erecting trade barriers to protect manufacturing jobs will also harm the much prized service sector because manufacturing and services are intertwined along global supply chains. Interconnectivity can be seen in other ways. Much of U.S. imports are affiliated transactions, in which US-headquartered firms import from their foreign affiliates or alternatively, in which foreign firms operating in the United States import from their parent corporations. The United States pays for its imports with dollars, which the world gets and reinvests in assets – stocks, bonds, real estate – in the United States. Indeed, the trade deficit is offset by a corresponding financial surplus and foreign investment surplus. Boundaries are indeed blurred.The second argument involves a call to zoom out, so trade can be examined broadly. The Article shows how trade and development are linked to national security, as acknowledged by the U.S. National Security Strategy since September 11. It is in U.S. interest for poor countries to be plugged into rather than severed from the international trade system. As Cordell Hull, Secretary of State in the Franklin Delano Roosevelt Administration said, “When goods don’t cross borders, armies will.” U.S. trade also cannot be separated from the U.S. dollar and its supremacy as international reserve currency. Even trade between countries that have no contact with the United States is most likely conducted in dollars. Central banks hold reserves in dollars. Even when President Nixon closed the “gold window” in 1971 and ended U.S. promise to redeem dollars for gold, the dollar remained unrivaled. U.S. agreement with Saudi Arabia to price oil in dollars means the world needs dollars to pay for oil – hence the term petrodollars. While the United States can print dollars, the rest of the world cannot. They get dollars by exporting. If the United States were to erect trade barriers to impede exports by other countries, it would hurt the dollar’s unique status and diminish the dollar’s “exorbitant privilege,” as charged by French Foreign Minister Giscard D’Estaing.In fact, from a nationalist standpoint, free trade and dollar supremacy have been great for the United States. It is, at the very least, ironic that trade is under attack in the United States on nationalist grounds
