SelectedWorks @ Chapman University Dale E. Fowler School of Law
Not a member yet
1539 research outputs found
Sort by
Much Ado About Pluralities: Pride and Precedent Amidst the Cacophy of Concurrences, and Re-percolation After Rapanos
No full textConflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to explore this topic of concurrences, precedential complexities, and confusion. It addresses these issues by introducing the Marks doctrine\u27s ability to assist jurists and others who are wrangling with precedents latten by pluralities. Part of the precedential system is the signaling function to lower courts, and that signal can be disrupted by plurality opinions, and it analyzes lower courts\u27 reaction to the fractured nature of Rapanos. But plurality decisions may open the door to re-percolation in interpretations. Finally, this Article examines Marks and this situation in relation to judicial motives. The legal treatment of separate opinions may alter incentives to concur rather than join, thus creating the possibility that their nuance on the holding will have greater influence once a case must be applied in the lower courts. Rapanos provides an excellent case study of a fragmented decision in the era of many such decisions. The confusion that it has caused is serious and reflects the limitations of lower courts\u27 ability to apply the Marks doctrine as well as the limitations of the doctrine itself. Thus, while the Marks doctrine creates self-interested incentives to write separately, its limitations act as a check on these incentives. Whether that check is enough to control the pride, prejudice or prudence that causes the Court to issue a fractured decision is questionable. As a result, some plurality decisions are much ado about nothing, but others are a source of ongoing confusion and uncertainty that seriously undermines our system of precedent
The Suburb as a Legal Concept: The Problem of Organization and the Fate of Municipalities in American Law
No full textThis article argues that suburban municipalities obtained a privileged status vis-à-vis cities in American law – a reversal of the historical pattern – because the suburbs, as conceived by legislators and the judiciary, were more readily integrated as organs of the modern administrative state. In particular, where the city represented a mode of organization that emphasized autonomy from the sovereign and the rights of the collectivity as against those of the individual, the suburb was constructed as a conduit for the State to exert authority on and distribute goods to isolated single-family homeowners. This article traces the evolution of the legal concept of the municipality by situating it within the context of parallel transformations in two similar corporate organizations: the business corporation and the labor union. Beginning in the Progressive Era of the late nineteenth century, rapid industrialization caused the city, the business corporation, and the labor union to swell in size and influence. Threatened by the challenge these organizations posed to State authority and individual freedom, political elites and the courts responded by stripping them of their corporate legal powers. A more sophisticated approach appeared after the First World War, as the elites opted to reconstruct and reinvigorate the organizations in a manner that served their own goals. Organizations were endowed with a collective legal status that superficially recalled the grand stature of their past while codifying their subordinate roles within the bureaucratic state. Thus, the suburb assumed the trappings of corporate personality once reserved for the city even as it proclaimed the emergence of a new legal concept of municipal organization
The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy
No full textTechnological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law\u27s dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright - blockheads, as Samuel Johnson called them - to supply us with original expressive works. This paper describes the economic push and pull between distributed infringement and distributed authorship - between copyism and blockhead-created content, we might say - and how copyright policy should mediate those forces
The Role of Critical Thinking Skills in Practicing Psychologists\u27 Theoretical Orientation and Choice of Intervention Technique
No full text
