SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Pirates in the Family Room: How Performances from Abroad, to U.S. Consumers, Might Evade Copyright Law
No full textWhat will international copyright law look like in ten years? It will doubtless offer many different facets and will, as at present, elude any comprehensive portrait. This brief paper thus focuses on just one plausible and interesting scenario: Parties overseas will come to offer unauthorized performances of copyrighted works to consumers in the United States, a practice that will rouse the ire of copyright holders but that the Copyright Act will do little to stop. Depending on where the transmitted performances take place, legally speaking, they might not qualify as infringing under the Act. Even if they do qualify as infringing, moreover, unauthorized cross-border performances will in practice prove very hard to stop. Technological advances in media devices and growth in bandwidth will soon bring pirated performances to every family room - indeed, to every laptop, digital tablet, and smartphone. This prospect of unauthorized performances from abroad, to domestic consumers, stands to teach us about both the present and future of copyright law
On Equality: The Anti-Interference Principle
No full textThis Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided. The primary point is that equality matters. The purpose of this Essay is not to survey the vast political, jurisprudential and academic debate on equality but instead to take a broad look at the philosophical concept of equality itself. Part I discusses the general meaning of equality. Part II presents brief summaries of some selected recent developments regarding the concept of equality, namely California’s Proposition 8 and the U.S. Supreme Court decision in Ricci v. DeStefano. Part III introduces a useful term for the equality discussion – “anti-interference” – and argues that the best way to foster equality is to embrace freedom, choice, and liberty in the absence of a showing that different treatment is justified to avoid harm. Simply stated, equality is best served when the government refrains from interfering with individual choice and individual freedom
Prosecuting Nazi War Criminals in the UK and Lessons for Today: Will History Repeat Itself?
No full textKnowledgeable Judges Make the Difference: Judicial Beliefs Affect Juvenile Court Transfer Decisions
No full textThis study examined how judicial knowledge and attitudes about transfer affects transfer decisions by juvenile court judges. Participants included 232 juvenile court judges from around the country who completed a vignette survey that presented a prototypical case involving a serious juvenile offender. Participants were asked to decide whether the juvenile should be transferred and to rate his rehabilitative potential. Judges who believed in the deterrent effects of transfer were more likely to recommend that the juvenile be transferred and to rate him as having lower rehabilitative potential. More experienced judges saw greater rehabilitative potential in the juvenile and were less likely to transfer him to the criminal court. Overall, judges tended to think that transfer lacked general and specific deterrent effects, endorsed rehabilitative over punitive goals in sentencing, and felt positively about the juvenile justice system\u27s effectiveness in handling serious offenders. Yet, a sizable minority of judges felt otherwise. The implications of the findings for judicial education and legal advocacy are discussed
While Effusive, \u27Conclusory\u27 is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance
No full textThe meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal. This Article attempts to explore this definitional perplexity. Available dictionary definitions at best give us a general idea of what “conclusory” means but can hardly resolve the perplexity of how the word is used to filter the acceptable from the unacceptable pleadings. The “conclusory” standard in Iqbal might turn out to be nothing more than a “I know it when I see it” standard. There is a sense in Iqbal that conclusory statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards. Part I documents the usage of the word “conclusory” and the upward trend in its use throughout the past century. Part II summarizes the use of the word “conclusory” in the pleadings standards established in Twombly and Iqbal. Part III then surveys the literature on Iqbal. Part IV concludes that the dictionary definitions are of little utility in understanding the meaning of “conclusory” in Iqbal and do not provide clear guidance to litigants or the courts in applying Iqbal’s pleadings standards in that regard. Such a conclusion should not be surprising, I contend, in light of the inherent limitations in dictionaries themselves. Part V presents two primary conclusions: (1) the Iqbal “conclusory” prong has a low degree of predictability in its application and is largely subject to judicial interpretation of pleadings on a highly individualized, judge-specific, and case-by-case basis; and (2) one of the only methods available to operate within this high degree of uncertainty is to base one’s understanding of the Iqbal test on the historical usages of the word within past court decisions. Appendix E provides a reference list of U.S. Supreme Court cases that have used the term “conclusory” with minor annotation to indicate some context of the usage. This Article will attempt to tell the history and story of one word – “conclusory”. At the end, the reader will still not know what exactly that one word means. But therein lies the point of the exercise upon which this Article embarks. It is a seat on the observation deck to the evolutionary spread of a word into our lexicon, a revelation about the fallibility of dictionaries, a recognition of the sometimes indeterminate use of language, a caution that a word’s meaning is seldom revealed in isolation, a lesson on the importance of contextual analysis, a debate about the utility of flexibility in standards, and a charge in the face of unavoidable confusion to make the best use of skill and analogy to operate within the constraints of a new judicially-demanded ante for entering the game of civil litigation
Those Who Can\u27t, Teach: What the Legal Career of John Yoo Tells Us about Who Should Be Teaching Law
No full textPerhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.
John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor Yoo is considered something of a superstar; he has been described as “a leading scholar on the relationship of international law to constitutional commands.” Even so; he teaches at a law school – an entity engaged in preprofessional education. Prior to tenure in the Bush Administration, Professor Yoo had little experience in the practice of the law; as we will see, this makes him typical of the current generation of legal educators. Professor Yoo also represents something of a natural experiment of a type that we rarely see – the unusual case of a leading legal scholar with the limited professional experience typical of his generation who leaves the academy and practices law on a regular basis. When Professor Yoo actually practiced law, he made quite a hash of things. It is remarkable that the legal academy could regard as something of a superstar an individual who proves unable to practice – at an acceptable level – the profession for which he is training his students. Professor Yoo’s case is unusual in that he took the rare step of leaving the academic cocoon and venturing into a position where his professional deficiencies were likely to be exposed, but there is reason to believe that his lack of professional judgment is common among the scholars of his generation. All of this suggests that there is something deeply wrong with the state of legal education today.
This article begins by illustrating the deficiencies in the legal work of Professor Yoo during his service in the Department of Justice. It then explain why those deficiencies cast grave doubt on Professor Yoo’s qualifications to teach law. The article concludes by observing that Professor Yoo\u27s case illustrates the problems that inheres with the legal academy\u27s decision to champion the theoretician as teacher instead of those who have developed the kind of professional judgment so critical to success in the practice of law
Thinking Like Thinkers: Is the Art and Discipline of An Attitude of Suspended Conclusion Lost on Lawyers?
No full textIn his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains “the attitude of suspended conclusion” when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself. Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to “shoot first and ask questions later.” The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process. The Article includes sections on the educator’s role in “thought”; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important
