SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The Eighth Amendment as a Warrant Against Undeserved Punishment
No full textShould the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. The deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I aim to clarify both what the Eighth Amendment reveals about the kind of people we would like to be and why the Supreme Court is not able to force us to live up to the aspiration
From Plyler to Arizona: Have the Courts Forgotten About Corfield v. Coryell?
No full textThe U.S. Constitution assigns plenary authority to determination naturalization policy to the Congress. Yet increasingly the Courts have undermined Congress\u27s policy judgments with invented constitutional rights. This article explores how the Courts have enhanced the three principal magnets to illegal immigration and thereby undermined congressional policy: employment; education and other social services; and citizenship itself
Certainty of Title: Perspectives After the Mortgage Foreclosure Crisis on the Essential Function of Effective Recording Systems
No full textRecording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down. Leading up to the crisis, as securitization became vogue and the housing boom blurred priorities, market participants found every way to avoid using the recording systems unless absolutely necessary. The market substitute to traditional recording, MERS, was well-intentioned but poorly operated. The article explores some of the ways that recording failures contributed to, and concurrently were exacerbated by, the crisis. Most importantly, this article is a defense of the institution of recording and an examination of the utility of certainty of title. Recording creates a network of information supporting a network of transactions. If we understand that one can transfer only as much property as one has, we should equally understand that such a rule is only useful if we have the means to figure out what one has in the first place – in some authoritative and certain way (including knowing that the courts will come to the same conclusion) such that we can adjust our behavior and arrange our interactions with that property around that knowledge. These truths lie at the heart of the importance of certainty of title and at the core of the justification for the existence of market-facilitating registries or recording systems that document property ownership in society
Lessons from Positive Psychology for Developing Advocacy Skills
No full textAdvocacy skills are crucial to law students and lawyers. One of the ways law students develop those skills is in the context of lawyering skills competitions. Coaching advocacy teams is something many of us do by instinct and experience. This article explores whether there is any psychological research that might offer more systematic guidance for advocacy coaches. Positive psychology does offer some principles that suggest useful approaches to coaching. Taken together with the aforementioned instinct and experience, these principles can help coaches be more effective in training young lawyers for litigation and dispute resolution practice