SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Discovering Economics in the Classroom with Experimental Economics and the Scottish Enlightenment
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Evidence-Based Sentencing: The Science of Sentencing Policy and Practice
No full textSentencing is where much of the action is in criminal practice, particularly since ninety percent or more of cases never go to trial but are settled through plea bargains. Acting within the constraints of applicable presumptive or mandatory sentencing guidelines, probation officers, prosecutors, defense attorneys, and judges typically rely on their instincts and experience to fashion a sentence based upon the information available about the offense and offender. But relying upon gut instinct and experience is no longer sufficient. It may even be unethical – a kind of sentencing malpractice that produces sentencing recommendations and decisions that are neither transparent nor entirely rational. Rather, selecting the sentencing option(s) that will best reduce recidivism through deterrence, incapacitation, or rehabilitation is a scientific question that should be informed by the science of best practices – that is, “evidence-based practices.” This introductory article for the Chapman Journal of Criminal Justice’s Symposium Issue on Evidence-Based Sentencing, provides an overview of the scientific and legal issues underlying the evidence-based approach and an introduction to the articles in the symposium issue
Boumediene v. Bush and Guantanamo, Cuba: Does the \u27Empire Strike Back\u27?
No full textCommenting on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantanamo Bay, Cuba, this Article argues that anomaly on the base heavily influences War on Terror detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantanamo but retains complete jurisdiction and control for an indefinite period; while Cuba has ultimate sovereignty. Gerald Neuman labels this an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because of this anomaly, with checks in constitutional and international law perceived to not apply. This Article makes three arguments about what legal norms apply on Guantanamo. First, the base\u27s legal anomaly is not an aberration, but instead is a precise objective of U.S.-Cuba relations, evident in the Platt Amendment and international agreements. Second, four legal objectives frame this anomaly, historically and presently. They are that the U.S.: avoids sovereignty abroad, limits incidents of Cuban sovereignty, avoids constitutional limits for its overseas authority, and protects strategic overseas interests. Using these objectives, Boumediene addresses this current anomaly. To hold that detainees have access to the writ of habeas corpus in the Constitution\u27s Suspension clause, the Court finds that the U.S. exercises de facto sovereignty over the base and that the Constitution has extraterritorial application. Third, tracking legal similarities in base occupation and base detention, post-colonial analysis illuminates how current doctrine evades individual rights protections with overseas authority. These three points illuminate how in the future U.S. law may determine what legal norms check (or not) overseas authority, whether on Guantanamo or in other extraterritorial settings
Harmful Error: How the Courts’ Failure to Apply the Harmless Error Doctrine has Obstructed the ADA’s Standing Spectators Rule
No full textTitle III of the Americans with Disabilities Act (ADA) explicitly applies to public accommodations, including sports arenas. What is significantly less clear, as evidenced by a split in courts\u27 opinions, is the validity of the Department of Justice\u27s (DOJ) standing spectator rule. This article will highlight a unique administrative law argument that would resolve the rift in favor of enforcing this important access rule. Standard 4.33.3 requires that individuals seated in wheelchairs in stadiums and other assembly areas have lines of sight comparable to those of the general public. Three years later, and without following the Administrative Procedure Act\u27s (APA) notice and comment procedures, the DOJ issued a supplement to the Title III Technical Assistance Manual (TAM). In the TAM supplement, the DOJ stated explicitly that the lines of sight referred to in Standard 4.33.3 included lines of sight over standing spectators. Some courts have refused to enforce the standing spectator rule, finding it substantive rulemaking in violation of the APA\u27s notice and comment requirements. Others concluded that the standing spectator rule was entitled to deference because it simply interpreted Standard 4.33.3, and therefore did not violate the APA. This article will discuss how every court to consider the standing spectator question has failed to complete the analysis. Rather than stop after answering the deference question, courts should have applied the harmless error rule. Had they done so, each would have reached the same conclusion: even if the TAM supplement were substantive rulemaking, the lack of notice and comment was harmless error; because the very same question was noticed and commented upon when the initial standard was issued, the DOJ did not have to repeat the process before issuing the TAM supplement
