SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Reduce, Reuse, and Recycle: How Using “Recycled” Simulations in an LRW Course Benefits Students, LRW Professors, and the Relevant Global Community
No full textUnlike theory-based first year doctrinal courses, an LRW course typically teaches law students how to think, analyze, research, and write like lawyers through the use of real-world “simulations.” Drafting these simulations is one of most challenging and time-consuming aspects of an LRW professor’s job. Yet, despite the effort involved in both creating and teaching new simulations, controversy continues within the legal academy about whether reusing simulations is appropriate – or is simply an invitation for students to cheat. This article is the first to address head-on the ongoing debate over “recycling” LRW simulations, and describes not only how concerns over student cheating can be effectively addressed, but also how recycling simulations in an LRW course is a win-win-win for all relevant stakeholders. Using the analogous concepts behind traditional recycling as a guide, this article describes the benefits to students, LRW professors, and the greater legal community that could be realized by the deliberate use of recycled simulations. First, this article shows how using recycled simulations in an LRW course results in greater student learning and measurably better student work product. Second, this article describes how using recycled simulations contributes to the professional development of an LRW professor. Finally, in light of recent proposed changes to ABA law school accreditation standards, which may soon require law schools to engage in institutional assessment of student learning outcomes, this article describes how using recycled simulations in particular can help an LRW professor begin a more effective and reliable formal assessment of critical student learning within the LRW course. Beginning this type of assessment in a first year LRW course would be particularly beneficial to numerous stakeholders because it would allow an institution to determine, early on, what programmatic changes must be made in order to ensure that its students attain competency in these necessary real-world skills by graduation
Kiyemba, Guantanamo, and Immigration Law: An Extraterritorial Constitution in a Plenary Power World
No full textImmigration law is central to justifications for why five men remain detained indefinitely at Guantanamo, despite having writs of habeas approved in 2008. Since then, the Court of Appeals in Kiyemba v. Obama I, II, and III has used plenary powers reasoning to justify detentions under immigration law. The detainees are all non-combatants and Uighurs, Turkic Muslims from China. The Supreme Court may review these cases. Kiyemba I and III concern their judicial release into the U.S., while Kiyemba II regards barring their transfer because they may be tortured overseas. These cases raise significant constitutional habeas issues, but they also justify detentions with plenary powers. This reasoning defers immigration issues to the political branches and denies rights because of a detainee’s alien status or presence overseas. This Essay argues that immigration law, i.e. plenary powers, provides a “fall back” legal justification for Guantánamo detentions. This is especially important after the Supreme Court’s finding in Boumediene v. Bush that aliens on the base enjoy constitutional habeas rights. A critical non-legal context produces the Kiyemba detention quagmire. A transnational analysis of this context points to the normative influence of assumptions on diplomacy, culture, geopolitics, individual rights, and the War on Terror
You Say You Want a (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, and Institution Building for Freedom for Governments Emerging Out of Peaceful Chaos
No full textWith nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful chaos must accept the fact that multiple, competing interests will try to coopt any society in transition and unless that power wishes to cede that transition to an opposing ideology, that power must engage in cooptation itself. The events beginning in 2011 that have been popularly named the “Arab Spring” provide some useful examples for testing the concepts of influence, soft power and strategic ideological cooptation discussed in this Article. As a countervailing “interest group,” Westerners can use their soft power to (a) provide a force that moderates the power of the radical interest groups that will undoubtedly seek to influence the emerging regimes themselves; or (b) win the battle for strategic ideological cooptation by advancing arguments in favor of classical liberal thought that will consume the minds and guide the actions of the replacement leaders. This article describes the importance of Western legal thought as influential to the development of emerging societies, including a particular emphasis on the importance of institution building within such societies. It contends that democratic election and/or the recognition of rights, while integral to the overall advancement of such societies, cannot flourish without the development of key institutions of limited governance. The article concludes discussing one method that the United States and similarly aligned interests can use to begin that engagement in strategic ideological cooptation – supporting translations of classic Western legal and philosophical thought into Arabic. It also includes a response to Secretary of State Hillary Clintons remarks at a March 2011 Senate Appropriations Committee Meeting where Secretary Clinton was asked to directly comment on this Author’s work that has been critical of existing U.S. State Department translation programs including the Arabic Book Program
Yikes! Was I Wrong? A Second Look at the Viability of Monitoring Capital Postconviction Counsel
No full textThis article is a response to the tragic facts of Holland v. Florida, 130 S.Ct. 2549 (2010), in which state postconviction counsel missed the deadline for filing a federal habeas petition, despite his client’s numerous pleas for a timely filing. It is also an outgrowth of ideas developed in two prior articles, the first of which argued that the government’s decision to provide capital postconviction counsel triggers a constitutional obligation to provide effective assistance of counsel, which essentially means that the government must monitor counsel’s performance to ensure, to the extent possible, the delivery of quality assistance. The second article took up the topic of monitoring in more detail, exploring the scope of the constitutional monitoring obligation.
This article explores the reasons for the Florida Supreme Court’s monitoring failure in Holland. Specifically, the article seeks to determine whether Holland signals the ultimate futility of monitoring as a means of enhancing attorney effectiveness, or whether it simply reveals a problem in Florida’s own monitoring system. The inquiry is an important one, for it will help inform efforts to improve and promote the delivery of competent assistance
Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?
No full textThis Essay explores the legal challenges two immigration bills, Arizona’s 2010 S.B. 1070 and Alabama’s 2011 H.B. 56, and addresses how the Department of Justice (DOJ) fundamentally misunderstands the nature of state sovereignty and federalism, and concludes that, with the possible exception of one provision of the Arizona law, the states are acting well within their authority to protect the health, safety, and welfare of their residents without intruding on the plenary power over immigration and naturalization that the U.S. Constitution vests in Congress
