SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Without a Prayer?: Spirituality and Performance in Law School – A Reply to Professor Taylor
No full textProfessor Scott Taylor’s Spirituality and Academic Performance at a Catholic Law School: An Empirical Study was disheartening to Catholics and fellow travelers because it reported finding no relationship between the spirituality of law students and their academic performance at a prominent Catholic law school committed to its religious identity. In this essay, I explain how Professor Taylor’s study – the first and only one of its kind – is so methodologically flawed it leaves us unable to conclude anything about whether spirituality is related to academic performance. After a review of the few prior research studies on spirituality and performance, I explain the methodological problems with the Taylor study that make its results unreliable. The Taylor study serves as a cautionary tale about the pitfalls of empirical research conducted by law school professors, and my explication of the flaws in the study will point the way for how such studies should be conducted in the future. I conclude with observations on the value of empiricism in the legal academy and advice on how law professors could best undertake empirical studies in ways that will ensure their scientific validity and reliability
Book Review: John Yoo, Crisis and Command: A History of Executive Power from George Washington to George Bush
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Black Tuesday and Graying the Legitimacy Line for Governmental Intervention: When Tomorrow is Just a Future Yesterday
No full textBlack Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis mentality lead to legal reforms that become permanent and may be the result of an irrational reaction. At times of crisis, individuals succumb to increased governmental authority. But, when the real or perceived crisis subsides, many accepted increases in governmental authority empirically tend to be irreversible. Temporary satisfaction can bring long-term consequences. The crux of this cautionary tale is that crises can gray the legitimacy of governmental power and the citizenry’s acceptance thereof
The Law Professor as Counterterrorist Tactician
No full textThis essay responds to Professor Aziz Huq\u27s provocative article, The Signaling Function of Religious Speech in Domestic Counterterrorism. Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a signal\u27 for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq\u27s assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq\u27s suggested reforms would require consideration of a potential investigative subject\u27s speech if they were operationalized. His proposals might make things worse. Professor Huq urges investigators to focus on subtle, nuanced, local discursive contexts, without considering whether the risk of error likely to inhere in such difficult inquiries exceeds the risk of error at present. Moreover, Professor Huq recommends investigative techniques that depend on community cooperation, even though, as he acknowledges, the insularity of incipient terrorist cells not only makes them difficult to detect, but also means that they are unlikely to come to the attention to community members willing to cooperate with the authorities. In contrast, current doctrine, Professor Huq admits, relies on the most readily available signals and therefore minimizes search costs -- a not inconsiderable virtue. Politically accountable officials have powerful incentives to utilize effective counterterrorist tactics. Academics, in contrast, are effectively accountable to no one. The apparent unwillingness of those who are politically accountable for counterterrorist policy to put their eggs in Professor Huq’s basket of counterterrorism reforms should give us pause
Practical Impacts of Bilski for Tax Planning Patents: No Prohibition but Judicial Suspicion, Rampant Uncertainty, and Increased Calls for Congressional and Regulatory Reform
No full textGuantanamo as a \u27Legal Black Hole\u27: A Base for Expanding Space, Markets, and Culture
No full textGuantanamo appears as a legal black hole especially when examining detainee rights, but in reality empire purposefully creates these jurisdictional anomalies. To further U.S. interests overseas in 1903, base jurisdiction was crafted as anomalous between Cuban sovereignty and American occupation. For the 174 still detained, it\u27s still a black hole. After four Supreme Court decisions, anomaly continues to pervade detention litigation. Functional tests for extraterritorial constitutional rights, habeas proceedings, and the unclear fate of Uighur-detainees all suffer from doctrinal obfuscation. Detainees rights, or lack of, are just one aspect of anomaly. Empire\u27s dynamic forces produced these ambiguities. Guantanamo represents American assumptions on: expanding geographic authority, overseas market protections, and cultural superiority. Alejandro Colas explains empires require these three, i.e. space, markets, and culture. Accordingly, this Essay explores the base and: extraterritorial authority as empire\u27s space, intelligence acquired through detention for resources wars as empire\u27s markets, and discriminatory detention for Middle-Eastern and Central Asian nationals as empire\u27s culture. This Essay asks how assumptions on these three concepts shape law\u27s extraterritorial application
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
India\u27s Integrated Energy Policy: A Source of Economic Nirvana or Environmental Disaster?
No full textAbstract: India’s rapidly growing economy naturally demands increasing energy needs from the industrial scale down to the personal. Mindful of potential negative impacts of economic development, India is making efforts to encourage growth while preserving and protecting the environment and human rights. India’s Integrated Energy Policy sets out the roadmap for how the country plans to achieve the balance among development, environmental protection, citizens’ rights, energy security, and a host of other priorities and concerns. Though ambitious and broad in scope, the Policy may prove inadequate in mitigating environmental impacts of development, and thus inadequate in balancing India’s needs, particularly in the realm of climate change