SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Legal Mechanization of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response to Professor Branson with Some Supplemental Thoughts
No full textThis Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go to help right the perceived wrongs in the world in which they operate. Although these questions could be posed simply as ones of policy or morality, with the injection of the ATS into the discussion they become questions that must be answered by examining the dictates and limits of law. Every expansion of liability, whether it is in terms of the persons or entities who may be sued or the nature of claims recognized as creating legal obligations, should be viewed cautiously
Sex Offenders and Child Sex Tourism: The Case for Passport Revocation
No full textThis paper addresses the problem that, under current law, convicted American sex offenders can obtain passports and travel overseas to abuse children sexually. American citizens participate actively in the child sex tourism industry and are estimated to represent a quarter of sex tourists in some destination countries. Many of those citizens have already been convicted and served prison terms for such crimes as child molestation, violent sexual assault, and the sexual abuse of children. Though subject to significant post-incarceration controls within the United States, they are able to obtain a passport and travel to poor countries where they abuse children with no real likelihood of being arrested.
I argue that the current legal regime is inadequate and recommend a new approach: that individuals convicted of specific sex crimes involving children not be permitted to hold a U.S. passport. In this Article I explore the constitutional issues and case law pertaining to passport issuance and revocation, explain the weaknesses in current anti-trafficking and anti-sex crimes legislation, and propose a specific statutory amendment to the Passport Act, including a draft of the proposed legislation
Severability of Statutes
No full textCourts legislate when they engage in severability analysis , allowing part of a law to continue in force, after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress and the state legislature remain in a position to pass a new law, unlike the parties to a contract who might not be in a position to create a new bargain. No appeal to convenience should allow severability practice to continue, any more than it would have allowed the legislative veto to continue after INS v. Chadha. It is more respectful of a co-equal branch to invalidate an entire act than to create a result that was not passed by the legislature or signed by the executive. Even in the presence of a severability clause, it is not reasonable to infer that the legislature considered all possible permutations of a bill and approved them all, accepting that a court might strike down some cluses while allowing others to stand. Severability analysis has created systems that the legislature never intended. The examples of campaign finance in Buckley v. Valeo and Sarbanes-Oxley last term in Free Enterprise Fund v. Public Company Accounting Oversight Board, are used to illustrate. Accordingly, when holding a provision of an act unconstitutional, a reviewing court should strke down the entire act that passed and allow the legislative and executive branches to craft what alternative they wish to adopt. This Article is the first commentary to call for the entire abolition, rather than some modification, of the severability process
Originalism Is Useless
No full textOriginalism is in ascendance. Both in judicial opinions and in the legal academy, originalist methods of constitutional interpretation are increasingly prominent. This essay nevertheless makes what may seem a claim – originalism is useless. In this, the essay takes a different path the the critics of orignalism have offered to date. Attacks on originalism usually question its normative desirability, but do not doubt that originalism offers a distinct approach to constitutional adjudication as compared to nonoriginalism. The concern here is with the question whether originalism is actually of help in addressing the kind of constitutional questions that come before the courts. It seeks to demonstrate that originalism has failed to develop a method for using the fixed framing-era meaning of constitutional text to reduce the scope of vagueness and ambiguity that gives rise to nonoriginalist adjudication.
To the extent that originalism demands that constitutional text be treated as binding, there is no real difference between originalism and nonoriginalism. Nonoriginalists rarely if ever contend the language of the Constitution can be ignored when it is inconsistent with contemporary sensibilities; to the contrary, they readily acknowledge that constitutional text is binding and that constitutional adjudication is properly concerned with interpreting rather than remaking the Constitution’s text. The advocates of a “living Constitution” instead make the more limited claim that contemporary understandings are of use in interpreting the broad, open-ended provisions in the Constitution’s text. For their part, even committed originalists acknowledge that the original meaning of constitutional text is sometimes vague or ambiguous, requiring what they characterize as nonoriginalist construction rather than interpretation on the basis of original meaning. Thus, whatever its theoretical merits, originalism offers a workable and distinctive approach to constitutional adjudication only if it provides a vehicle for utilizing the historically-fixed meaning of constitutional text as a means of reducing the interpretive leeway claimed by the nonoriginalist camp
Commentary on Predicting Crime
No full textThe market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box office returns. By contrast, this Comment adopts a legal point of view and speaks about as-yet theoretical disputes
Second Thoughts on Damages for Wrongful Convictions
No full textAfter the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in the criminal justice system as to render this rationale applicable. Moreover, because police and prosecutors respond to political and not economic incentives, the eonomic rationale for strict liability is unsatisfactory. Even viewed as a form of social insurance, mandatory compensation is problematic. Because compenation is funded by the taxpayers, it represents a highly anomalous wealth transfer from those most in need of government assistance to the wrongfully convicted. Given the many competing demands for scarce public resources, it is far from clear that public funding of wrongful conviction insurance represents a socially optimal use of public funds. Moreover, because damages awards are funded by the taxpayers rather than the wrongdoers, the case for compensation as a form of compensatory justice is equally problematic. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — skepticism that is amply warranted. A regime of fault-based liability for wrongful prosecutions and convictions could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction given that police and prosecutors respond to political and not economic incentives, and the political benefits of aggressive prosecutorial tactics are substantial. If individual public officials were required to pay judgments, in turn, many judgments would go unsatisfied, and the risk of overdetrrence would be great. Ultimately, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions
An Experimental Analysis of the Demand for Payday Loans
No full textThe payday loan industry is one of the fastest growing segments of the consumer financial services market in the United States. The purpose of our study is to design an environment similar to the one that payday loan customers face. We then conduct a laboratory experiment to examine what effect, if any, the existence of payday loans has on individuals\u27 abilities to manage and to survive financial setbacks. Our primary objective is to examine whether access to payday loans improves or worsens the likelihood of survival in our experiment. We also test the degree to which people\u27s use of payday loans affects their ability to survive financial shocks. We find that payday loans help the subjects to absorb expenditure shocks and, therefore, survive. However, subjects whose demand for payday loans exceeds a certain threshold level are at a greater risk than a corresponding subject in the treatment in which payday loans do not exist