SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Confusing Cause and Effect
No full textThis brief essay commenting on Paul Butler\u27s article, Race Based Jury Nullification: Black Power in the Criminal Justice System, prepared for the Criminal Law Conversations project, argues that Professor Butler\u27s proposal of race-based jury nullification to address the African-American community\u27s perception of racial injustice in the administration of the criminal laws, particularly the drug laws, confuses cause and effect. The most important cause of African-American dissatisfaction with the criminal justice system is its inability to keep inner-city communities safe. A regime of race-based jury nullification, in turn, would aggravate rather than ameliorate this serious problem
Off-Court Misbehavior: Sports Leagues and Private Punishment
No full textThis Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy - from players’ unions and commentators alike - especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory - juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports - and analyzes the legal and cultural limitations to this approach
A Commentary on the Old Saw that Same-Sex Marriage Threatens Civilization
No full textDiscussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects these civilizational concerns to empirically review and provides counterexamples to any claims regarding hegemonic and universal norms against same-sex relationships and homosexuality more generally. In light of that empirical survey, the chapter suggests that western civilization, and modern liberal-democracies in particular, are realizing their core moral and political values of equality and respect for the dignity of each individual human being when they extend legal recognition to same-sex couples, rather than reject or denounce their claims to full inclusion
Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines – and Law & Bananas: Property and Public Choice in the Permitting Process
No full textFrom produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials creates perverse incentives for regulators. This Article examines that phenomenon
Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment, and the Neglected Clause in the Thirteenth Amendment
No full textSteadfast originalists agree that the original meaning of our constitution\u27s language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are too bitter either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia\u27s faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice Scalia and many other conservative originalists employ. Libertarian and liberal originalists tend to conclude that an abstract clause in the constitution should be understood in a broad way that allows for its evolving application over time rather than narrowly, in accordance with the original expected application. On this view, they assert that originalism, properly employed, will not produce the kind of grossly objectionable results that caused Justice Scalia to be faint of heart. Building on this assumption, they have also offered a new kind of normative justification for steadfast originalism. They assert in essence that the system of government that our constitution created is legitimate, in that it adequately protects our rights, and that steadfast originalism is simply the best way to preserve the legitimacy-enchancing features of the document. However, this article challenges the assumption of the libertarian and liberal originalists by focusing on relatively specific constitutional language that courts and scholars have long neglected. That language appears in the thirteenth amendment, authorizing slavery as a punishment for crime. The article shows that the original public meaning of this clause, indeed, leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the eighth amendment. The article thus reveals why the legitimacy-enchancing theory for steadfast originalism is ill-founded. It also reveals that the negative implications of Justice Scalia\u27s comments for originalism as a coherent interpretive method cannot be dismissed simply by a move within originalism away from a focus on original expected applications to less confining measures of original meaning
Probability, Probable Cause, and the Law of Unintended Consequences
No full textThis brief essay responds to Max Minzer\u27s article Putting Probability Back into Probable Cause. The essay supports Professor Minzer\u27s proposal for the use of empirical evidence of the success of a given investigating officer or investigative technique in assessing the existence of probable cause to search or seize, but offers a caveat. If an officer\u27s hit rate becomes central to Fourth Amendment analysis, there is a serious danger of overdeterrence which, in turn, could lead to a dangerous escalation in violent crime. The essay offers some proposals for minimizing the risk of overdeterrence in an empirically-based regime of probable cause
