SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Law and Popular Culture: Examples from Colombian Slang and Spanish-Language Radio in 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
Judicial Transparency, Judicial Ethics, and a Judicial Solution: An Inspector General for the Courts
No full textMany federal judges routinely fear criticism, but that fear is unwarranted. The public is rightly concerned that the procedure to investigate and discipline problem-judges is flawed, particularly in a few high-profile cases discussed in this article. Several recent indictments of federal judges add to the problem. As Judge Ralph Winter has acknowledged, the status quo is not a confidence builder . Judges should welcome an Inspector General for the Federal Courts, who could restore public confidence in the federal judicial discipline system. The Inspector General can investigate potential ethical violations and proceed in those few instances where more is needed. This solution is something that both the public and the judiciary should welcome. Congress can create an Inspector General with appropriate safeguards that will keep our judiciary independent (because no one favors a dependent judiciary) and will keep our judiciary accountable (because no one favors a judiciary that is above the law)
GLOBAL WARMING: A SECOND COMING FOR INTERNATIONAL LAW?
No full textThis paper analyzes the role of international law in addressing global warming through the lens of a select number of compliance theories and rational choice theory. It presents an alternative view to the limits of international law in addressing climate change, i.e., that international law has created an economic dependency that has constrained the space for pursuit of traditional legal rights. In making this argument, this article examines the history oil exploration and climate policy. The article also makes some brief suggestions towards increasing the space for traditional legal rights
Second Amendment Plumbing after Heller: Of Incorporation, Standards of Scrutiny, Well-Regulated Militias and Criminal Street Gangs
No full textThe decision of the United States Supreme Court in District of Columbia v. Heller ended one debate about the Second Amendment while beginning another.
Prior to Heller, the principal point on which courts and scholars had joined issue was whether the Second Amendment secures an individual right to bear arms or a right to participate in an organized militia. In Heller, the Court came down on the individual-rights side while resolving little else about the extent to which the Second Amendment will constrain the power to regulate firearms. Among the many questions left for future litigation, the two most important are the extent to which firearms regulations must be justified in order to withstand constitutional attack, and whether the Second Amendment is applicable to the state and local laws as a result of its incorporation within the Fourteenth Amendment.
This article addresses these critical issues of doctrinal plumbing in the wake of Heller. Part I considers the stakes in the constitutional debates to come - a consideration that bears importantly on both incorporation and the standard of scrutiny. Part I argues that the available data suggest that stringent regulation of concealable weapons played an important role in driving down the rate of violent crime. By virtue of the underappreciated interaction between the constitutional rules governing search and seizure and the scope of firearms regulation, gun control laws enhance the ability of the police to utilize aggressive stop-and-frisk tactics when they suspect that a firearm is being carried unlawfully. These tactics, in turn, make it risky for gangs and drug dealers to carry firearms in public, thereby reducing the rate of violent confrontations in public places. The Second Amendment right articulated in Heller, however, imperils such efforts to drive firearms off the streets.
Part II turns to the historical evidence on incorporation. There has been something of a trend in the academy in favor of the view that incorporation of the Bill of Rights reflects the intentions of the authors of the Fourteenth Amendment. This scholarship, however, fails to take account of the emerging consensus among originalists that constitutional interpretation should not be guided by the intentions of constitutional drafters but instead by the meaning of the text as it would have been originally understood by the public - a view embraced by Heller itself. The historical case for incorporation is deeply problematic when measured against original public meaning. While many of those most instrumental in the crafting the Fourteenth Amendment likely did believe that it rendered the first eight amendments applicable to the states, there is only deeply conflicting evidence about whether this had become an accepted public meaning when the Fourteenth Amendment was ratified. The historical evidence therefore supplies no satisfactory basis for resolving the incorporation question.
Part III considers the case for incorporation under current doctrine, which asks whether a given right is necessary to an Anglo-American regime of ordered liberty. To determine whether Second Amendment rights are sufficiently fundamental to merit incorporation, it is first necessary to examine the nature of those rights; and that leads to the Second Amendment standard of scrutiny. Heller contains an important clue; it defines the militia to include all those physically capable of acting in concert for the common defense ; the militia is accordingly not limited to only the members of an organized militia. It follows that textual support for regulatory power over firearms is found in the Second Amendment\u27s preamble, which, Heller explains, is properly consulted to clarify the Amendment. The preamble envisions a well regulated militia ; thus, the preamble indicates that the entire populace capable of bearing arms may be well regulated. Regulation, however, cannot render the right itself nugatory, and for this reason, Heller suggests that firearms regulation should be sustained as long as it poses no undue burden to the right to keep and bear arms, much as the Court has evaluated abortion regulations. Part III then concludes that even this qualified version of the Second Amendment right does not merit incorporation. The eighteenth-century conception of the right to bear arms has not fared particularly well in subsequent jurisprudential history, and, even more important, in many high-crime urban areas, it may be effectively impossible to create the type of well-regulated militia envisioned by the Second Amendment. The demands of ordered liberty argue for leaving gun control policy at the state and local level
Understanding the Prop 8 Litigation: The Scope of Direct Democracy and Role of Judicial Scrutiny
No full textOnce the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are more skeptical, and some even argue that judicial review of direct democracy should be more searching, given that the usual vetting and deliberation has not occurred. This article seeks to place the debate over Prop 8 into the broader context of an ongoing discussion about the place of direct democracy in legal and constitutional change