SelectedWorks @ Chapman University Dale E. Fowler School of Law
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BOUMEDIENE V. BUSH AND GUANTÁNAMO, CUBA: DOES THE EMPIRE STRIKE BACK ?
No full textFocusing on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantánamo Bay, Cuba, this article argues that the base’s legal anomaly 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 Guantánamo but retains “complete jurisdiction and control” for an indefinite period; while Cuba has “ultimate sovereignty.” Gerald Neuman labels this as 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 Guantánamo. First, the base’s 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 anomaly, historically and presently. They are that the U.S.: avoids sovereignty abroad, limits incidents of Cuban sovereignty, avoids constitutional limits for overseas authority, and protects strategic overseas interests. Using these objectives, Boumediene addresses this anomaly. To hold that detainees have access to the writ of habeas corpus in the Constitution’s 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
Fixed Revenue Auctions: Theory and Behavior
No full textIn this paper, we study auctions in which the revenue is fixed but the quantity is determined by the auction mechanism. Specifically, we investigate the theory and behavior of English quantity clock, Dutch quantity clock, last-quantity sealed bid, and penultimate-quantity sealed bid auctions. For theoretically equivalent fixed quantity and fixed revenue auctions, we find that fixed revenue auctions are robust to all the previously observed empirical regularities in fixed quantity auctions
Shock, Awe, and Expropriation: The Act of State Doctrine and Loss Deductions under Section 165 of the Internal Revenue Code
No full textThe Act of State doctrine generally dictates that American courts not sit in judgment with respect to the acts of a foreign sovereign on its own soil. Courts commonly reason that although nothing in our Constitution requires recognition of the doctrine, adherence to its mandate effectively allows the Judicial Branch to steer clear of any actual or perceived interference with the Executive Branch\u27s conduct of foreign policy. Wholly aside from established notions of the proper separation of powers, appeal to the doctrine is also a generous display of international comity, allowing domestic courts to defer to the sovereign authority of a foreign power. Courts hearing domestic tax disputes involving foreign expropriation losses routinely appeal to the Act of State doctrine in refusing to characterize the loss as a theft. In this Article, I question whether a court appealing to the Act of State doctrine to reach one conclusion is obligated (even if only for the sake of analytical consistency) to defer to or recognize the executive, legislative, and judicial acts of that state (or the acts of other branches) in reaching related conclusions, consistent with established tripartite articulations of the Act of State doctrine. In arguing against a deconstructionist paradigm, I reason that a monolithic mindset enhances administrability, effectively polices judicial whim, and minimizes the potential for taxpayer whipsawing
Graduated Consent Theory, Explained and Applied
No full textWe often speak of consent in binary terms, boiling it down to yes or no. In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can help to advance legal, moral, and economic reasoning
A SLAPP in the Face: Why Principles of Federalism Suggest that Federal District Courts Should Stop Turning the Other Cheek
No full textThis article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer