SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Corporate First Amendment Rights after Citizens United: An Analysis of the Popular Movement to End the Constitutional Personhood of Corporations
No full textNo case in the Supreme Court’s last term was more controversial than Citizens United v. Federal Election Commission (Citizens United). In a sharply divided 5:4 decision, the Court invalidated strict federal campaign finance laws and upheld the First Amendment right of corporations to spend unlimited sums of corporate money to support or oppose candidates in political elections. Although mainstream criticism of Citizens United was fierce and widely publicized, a lesser known response to the case is a grassroots popular movement calling for an amendment to the Constitution establishing that money is not speech and that human beings, not corporations, are the only “persons” entitled to constitutional rights. The movement has ignited a national campaign to reverse the legal doctrine of corporate personhood, a doctrine that has allowed corporations for the last century to claim the same legal rights that natural persons possess. Anti-corporate activist groups revile the dominance of corporate power in modern society and believe now is the time to “overthrow corporate rule.” By orchestrating a nationwide initiative to amend the Constitution, these groups hope to follow in the steps of other social justice movements, like the suffragists and the civil rights activists, who successfully organized to demand legal reform. This Article seeks to bring attention to this burgeoning popular movement and the challenges it faces. The grassroots mobilization of these activist organizations in response to Citizens United raises important questions about the relevance of citizen interpretations of constitutional meaning and the role of law in shaping beliefs. This Article uses the doctrine of corporate personhood and the constitutional amendment campaign as points of departure for a broader analysis of the relationships between social movements, constitutional legal reform, and the expressive function of the law
Batterers as Agents of the State: Challenging the Public/Private Distinction in Intimate Partner Violence-Based Asylum Claims
No full textIntimate partner violence has been recognized by asylum-providing countries as a form of persecution. Nevertheless, it has often been difficult for battered women to establish their eligibility for asylum. Frustratingly, it is often the public/private distinction that is the culprit in the failure of survivors of intimate partner violence to prove their asylum claims. Adjudicators of asylum claims often view intimate partner violence as a private matter: a husband harming his wife on account of personal reasons. This scenario stands in stark contrast to the more traditional asylum claim: an agent of the state harming a citizen on account of that citizen’s race, religion, nationality, political opinion, or membership in a particular social group.
This paper asserts that intimate partner violence, when it occurs in countries that fail or refuse to protect women from it, is a form of state action. The goal of such a state is to oppress women in order to maintain the legal and societal dominance of men. The dominant members of society have articulated that goal by legislating female subordination and/or failing to legislate against female subordination. Intimate partner violence is one of the most brutal and obvious forms of relegating women to a subordinate status; abusive partners are thus agents of the state-sponsored subordination of women. Intimate partner violence is also a form of persecution as that term has been defined by various courts and other legal entities. Because abusive partners are acting as agents of state-sponsored persecution, women who flee abusive relationships and who are nationals of countries that tolerate or promote the subordination of women, are entitled to refugee protection as a matter of law.
The paper examines the societal and legal mores of two countries – Guatemala and Pakistan – that have a high rate of intimate partner violence and a legal system that places women in a subordinate status relative to men. Based on the assertion that the representative legal systems are specifically designed to maintain male dominance and the subordination of women, the paper argues that intimate partner violence is a state-sponsored form of persecution. Abusive partners thus act in much the same way as government officials who persecute minority groups that do not enjoy state protection.
This article does not seek to minimize the effectiveness or viability of claims based on membership in a particular social group. Rather, it argues that in order for intimate partner violence-based claims to continue to succeed irrespective of who is currently serving as Attorney General, adjudicators must understand and accept the political nature of intimate partner violence. In countries where the dominant approach to intimate partner violence is to ignore and trivialize it, those who perpetrate the violence are supporting and advancing a state goal to maintain the dominance of men and the subordination of women. Thus, every woman who defies a man by attempting to leave the relationship that legitimizes his abuse makes a political statement that must be recognized as a political opinion, namely, that men do not have the right to maintain their legal and societal dominance through violence
Upper Level Courses: Three Exemplars
No full textThis Article presents three exemplars of upper-level law school classes, and is divided into three parts. Part I discusses Securitization and Asset-Backed Securities ; Part II discusses Using Transactions to Teach Secured Transactions ; and Part III discusses Teaching Deals Through a Focus on the Entertainment Industry
Transparency, Efficiency and the Distribution of Economic Welfare in Pass-Through Investment Trust Games
No full textWe design an experiment to examine welfare and behavior in a multi-level trust game representing a pass through investment in an intermediated market. In a repeated game, an Investor invests via an Intermediary who lends to a Borrower. A pre-experiment one-shot version of the game serves as a baseline and to type each subject. We alter the transparency of exchanges between non-adjacent parties. We find transparency of the exchanges between the investor and intermediary does not significantly affect welfare. However, transparency regarding exchanges between the intermediary and borrower promotes trust on the part of the investor, increasing welfare. Further, this has asymmetric effects: borrowers and intermediaries achieve greater welfare benefits than investors. We discuss implications for what specific aspects of financial market transparency may facilitate more efficiency
First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech
No full textScholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.
This article offers a challenge to the purposivist account. It begins, in Part I, by considering the claims of the purposivists in light of the original meaning of the First Amendment. Although there is something of a scholarly consensus that the intentions of those who framed the First Amendment are impossible to determine, in recent years, originalist thinking about constitutional interpretation has made a dramatic move away from a jurisprudence based on the intentions of the framers or ratifiers and toward the original public meaning of constitutional text as the touchstone for constitutional interpretation. An inquiry into original public meaning offers reason to question the purposivist account.
Part II examines the purposivist account of First Amendment jurisprudence as it has evolved since the framing, illustrating the role of governmental purpose in First Amendment doctrine by considering a yet-unresolved issue that has divided the lower courts and commentators – the extent to which the First Amendment constrains the ability of the government to undertake investigations on the basis of the protected speech of the investigation’s target. Terrorism investigations, for example, can be triggered when the government becomes aware of political extremists as a consequence of their statements expressing approval of jihadist violence, or their attendance at events that condone such conduct, even though these activities are constitutionally protected under contemporary doctrine. The purposivist account suggests these “First Amendment investigations” must clear the hurdle of strict scrutiny because they are unacceptably likely to be infected by governmental hostility toward the target’s ideology. Indeed, history suggests that the risk that an impermissible motivation may accompany such investigations is quite real. Yet, subjecting the government’s decision to undertake an investigation to strict scrutiny is inconsistent with fundamental principles of First Amendment doctrine, and encounters powerful pragmatic objections as well. The interaction between the First Amendment and criminal investigations inevitably involves an assessment of the justification for the investigation and the extent to which it inhibits constitutionally protected activity – precisely the kind of pragmatic balancing that the purposivists denounce. Indeed, the example of First Amendment investigations poses a challenge to any categorical or absolutist account of the First Amendment.
Part III considers the pragmatic structure of First Amendment doctrine. Part III contends that current doctrine reflects the centrality of pragmatic balancing, with the metaphor of a free marketplace of ideas providing the essential metric to govern the balancing inquiry. Regulations likely to distort the marketplace of ideas impose particularly heavy costs to First Amendment values, thereby requiring particularly powerful justifications. To be sure, the purposivists are right that balancing can be dangerously indeterminate, but First Amendment doctrine handles this objection with a highly structured approach to balancing based on a series of categorical judgments about the likelihood that a challenged regulation will distort the marketplace of ideas.
Structured balancing, however, breaks down when it becomes difficult to assess the likelihood that challenged government conduct will suppress disfavored speech or speakers. A prime of example of this problem is presented by First Amendment investigations, which can be performed in a responsible and discrete fashion unlikely to chill the exercise of First Amendment rights, or in an abusive and oppressive fashion. When it comes to First Amendment investigations, ad hoc balancing is the only tenable approach