SelectedWorks @ Chapman University Dale E. Fowler School of Law
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U.S. Immigration Law: Where Antiquated Views on Gender and Sexual Orientation Go to Die
No full textThis Essay examines the paradoxical approaches to gender and sexual orientation bias within the U.S. immigration system. On the one hand, the immigration system has managed to convey benefits to same-sex partners despite federal law prohibiting the recognition of same-sex unions for immigration purposes. Immigration law also provides benefits for victims of crimes disproportionately committed against women, such as human trafficking and domestic violence, although the systems in place for adjudicating these benefits are flawed. On the other hand, immigration law favors antiquated notions of gender roles that disadvantage U.S. citizen men and their children, and has failed to recognize domestic violence as a basis for asylum. Gender inequality in U.S. immigration law has a long history. It has taken the form of blatant discrimination on the basis of sex as well as facially neutral laws and policies that have a disparate impact based on sex
Race, Death and Disproportionality (Symposium Article)
No full textStatistical studies showing unconscious racial bias in capital selection matter under the eighth amendment. In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment. Yet, this kind of evidence has influenced many of the Justices\u27 views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment. My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to \u27cruel and unusual punishments\u27. Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.
My project proceeds in five parts. Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation - a mandate that only a person who deserves the death penalty should receive that sanction. Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it. Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process. Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur. Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves. Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced. In fact, Part V contends that, despite the Court\u27s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court - and will continue to influence it - to confine the use of the death penalty
Net Neutrality Regulation: The Economic Evidence
No full textIn the authors\u27 shared opinion, the economic evidence does not support the regulations proposed in the Commission’s Notice of Proposed Rulemaking Regarding Preserving the Open Internet and Broadband Industry Practices (the “NPRM”). To the contrary, the economic evidence provides no support for the existence of market failure sufficient to warrant ex ante regulation of the type proposed by the Commission, and strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run. To the extent the types of conduct addressed in the NPRM may, in isolated circumstances, have the potential to harm competition or consumers, the Commission and other regulatory bodies have the ability to deter or prohibit such conduct on a case-by-case basis, through the application of existing doctrines and procedures. Hence, the approach advocated in the NPRM is not necessary to achieve whatever economic benefits may be associated with prohibiting harmful discrimination on the Internet
Radio Spectrum and the Disruptive Clarity of Ronald Coase
No full textIn the Federal Communications Commission, Ronald Coase exposed deep foundations via normative argument buttressed by astute historical observation. The government controlled scarce frequencies, issuing sharply limited use rights. Spillovers were said to be otherwise endemic. Coase saw that Government limited conflicts by restricting uses; property owners perform an analogous function via the “price system.” The government solution was inefficient unless the net benefits of the alternative property regime were lower. Coase augured that the price system would outperform. His spectrum auction proposal was mocked by communications policy experts, opposed by industry interests, and ridiculed by policy makers. Hence, it took until July 25, 1994 for FCC license sales to commence. Today, some 73 U.S. auctions have been held, 27,484 licenses sold, and 17 billion in U.S. welfare losses have been averted. Not bad for the first 50 years of this, or any, Article appearing in Volume II of the Journal of Law & Economics
Revolutions in Local Democracy? Neighborhood Councils and Broadening Inclusions in the Local Political Process
No full textPolitical marginalization of minorities and government corruption are two key factors that have led to the overwhelming decline and decay of America’s major cities. Local governments must combat the historical entrenchment of these two evils in order to reverse the trend toward demise. Neighborhood councils may be the best structural changes to local government because they provide more meaningful opportunities for political engagement of minority groups, while also serving as an antidote to systemic corruption in local government. This Essay analyzes the problems plaguing local government in urban cities and explores how neighborhood councils may be able to help address them