SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation
No full textThis paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego\u27s Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation. In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of citizenship protected by the Fourteenth Amendment\u27s Privileges or Immunities Clause. At the same time, however, most originalists have rejected the view that constitutional interpretation should be based on the intent of the framers, and instead have argued that constitutional text should be interpreted in light of its original public meaning. This approach, sometimes called The New Originalism, seems to have prevailed in the Supreme Court; the Court\u27s recent decision interpreting the Second Amendment\u27s right to bear arms endorses original public meaning as the appropriate method of originalist interpretation. This paper seeks to demonstrate that the New Originalism poses special problems for incorporation. The view of key framers that because the privileges and immunities of citizenship included the Bill of Rights was not the predominant one; although the concept of the privileges and immunities of citizenship at the time of the Fourteenth Amendment\u27s framing was contested, the most widely shared view was the these privileges and immunities of citizens did not include the first eight amendments. Although many who crafted the Fourteenth Amendment had a different view, the evidence that the drafters succeeded in altering the public\u27s understanding of the privileges and immunities of citizenship is in conflict, and in many respects unsatisfactory. Viewed through the lens of original public meaning, the historical case for incorporation is therefore problematic. The paper concludes that because the meaning of the Privileges and Immunities Clause at the time of ratification with rife with ambiguity, a nonoriginalist approach is a better way to tackle the incorporation problem, even for a New Originalist determined to base constitutional adjudication on methods for ascertaining constitutional meaning that were accepted in the framing era
Tenure Buyouts: Employment Death Taxes and the Curious Obesity of Wages
No full textPrior to January of 1994, institutions of higher education could appeal to an exemption in the Age Discrimination in Employment Act of 1967 to force the retirement of tenured faculty members who had attained the age of seventy. With the expiration of that exemption, tenured faculty members may now retire well after that age, and for various personal and professional reasons, the postponement phenomenon is widespread. Despite the considerable appeal of a tenure buyout system, there is a real question as to whether buyout payments are subject to payroll taxes as “wages” with respect to “employment;” U.S. Courts of Appeals have split on the issue. This Article highlights the fact that expanding or narrowing the ambit of payroll tax “wages” has far-reaching impact, given that payroll tax revenues fund not only Social Security and Medicare programs but also general government expenditures. In addition to arguing that burgeoning entitlement program needs and virtually chronic federal budget woes have exerted expansive pressure on the “wages” concept, the Article contends that the position adopted by the Third Circuit in University of Pittsburgh v. United States represents judicial overreach because the court imported a definitional standard from the world of the Social Security Act into the tax arena despite clear and wise exhortation, per United States v. Cleveland Indians Baseball Co., not to indulge that tendency. Given the modest attention payroll tax policy gets on the political stage, the historical academic focus on progressive tax policy, and the ease of silent piggybacking on the employer-employee relationship, the payroll tax machinery is capable of truly admirable stealth, which can, in fact, pay off handsomely in the form of substantial revenue from low- and mid-wage earners
Law and Popular Culture: Examples from Colombian Slang and Spanish-Language Radio in the U.S.
No full textThis article argues that critical analysis of popular culture themes benefits legal scholarship by providing distinct cross-border perspectives and illuminating popular resistance efforts to hegemonic forces. This examination occurs in an Inter-American context, characterized by a south-north dynamic and migration\u27s transnational influence. In these dynamics, there is significant popular resistance and anti-subordination to hegemonic forces. Legal scholarship often overlooks this by focusing on formal legal texts and processes. This resistance is visible within popular culture, as part of ¿hidden transcripts.¿
This article makes two claims about popular culture\u27s relevance, one methodological/theoretical claim and one substantive claim. First, observing how popular culture reflects societal interpretations of the law and politics greatly benefits the scholarly objectives of international research by promoting an exchange across national borders with an appreciation for different perspectives. Second, critically exploring popular culture illuminates how resistance and anti-subordination efforts often exercised by popular sectors, civil society, or Southern countries may be represented in this culture. As evidence of this, Colombian slang and Spanish radio in the U.S during 2006 immigration demonstrations are examined as two popular culture examples. This article incorporates theoretical innovations from law and popular culture scholarship, Latin American cultural studies such as N¿stor Garc¿a Canclini\u27s work, James Scott\u27s ¿arts of resistance¿ and ¿hidden transcripts,¿ and post-colonial theory
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
Corporations are People Too: A Multi-Dimensional Approach to the Corporate Personhood Puzzle
No full textThe recent controversy over the billions of dollars authorized by Congress to bail out some of the nation’s largest corporations has illuminated a debate about the nature and role of corporations in our society. This debate involves fundamental questions about what or who it is exactly we are trying to save with bailout money. Has the corporation’s presence become such an integral part of our lives that its status obligates us to treat it as a “person” worth saving. Legal theorists have long puzzled over the nature of the corporate person and the value of calling the corporation a person for purposes of legal rules. Different theories of corporate personhood provide contrasting normative frameworks for how we should view corporations, how they should be treated, and how they should treat us. In this Article, Professor Ripken takes a unique interdisciplinary approach to the puzzle of corporate personhood. Drawing upon theories from several different schools of academic thought, this Article sheds light on the questions: what is the corporation, and what is its role in our complex, modern society. Professor Ripken argues that the corporation is a multi-dimensional person, and that our laws and policies toward it must reflect a multi-dimensional perspective
Corporations are People Too: A Multi-Dimensional Approach to the Corporate Personhood Puzzle
No full textThe recent controversy over the billions of dollars authorized by Congress to bail out some of the nation’s largest corporations has illuminated a debate about the nature and role of corporations in our society. This debate involves fundamental questions about what or who it is exactly we are trying to save with bailout money. Has the corporation’s presence become such an integral part of our lives that its status obligates us to treat it as a “person” worth saving. Legal theorists have long puzzled over the nature of the corporate person and the value of calling the corporation a person for purposes of legal rules. Different theories of corporate personhood provide contrasting normative frameworks for how we should view corporations, how they should be treated, and how they should treat us. In this Article, Professor Ripken takes a unique interdisciplinary approach to the puzzle of corporate personhood. Drawing upon theories from several different schools of academic thought, this Article sheds light on the questions: what is the corporation, and what is its role in our complex, modern society. Professor Ripken argues that the corporation is a multi-dimensional person, and that our laws and policies toward it must reflect a multi-dimensional perspective
The Founders\u27 Intent, Constitutional Provisions, and Limits on Spending Power and Delegation
No full textAn Experimental Inquiry into the Social Construction of Property
No full textWe design a laboratory experiment to explore whether and how property rights emerge in a specialization and exchange environment where theft is costless. Additional treatments examine various enforcement mechanisms to determine whether private actions can produce agreement to respect property. We find that although an absence of exogenous enforcement does not hamper property’s emergence in all cases, private enforcement instruments tend to worsen outcomes. Property emerges when subjects form groups, understand potential gains from trade, convince group members that all benefit by avoiding theft, and display credible commitment to cooperation in their actions. In other words, as Hume argued in 1740, property is a convention
