SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . . . and Parking Tickets
No full textOriginalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution\u27s open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered due at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures\u27 that alter framing-era procedural rights, such as the novel systems for administrative adjudication of parking ticket cases now used in many municipalities that this article uses as an example of the problems that inhere in an originalist account of procedural due process. Nevertheless, it seems to have gone unnoticed that in jurisprudence and scholarship about procedural due process, originalism is nearly entirely absent.
The Constitution twice forbids deprivation of life, liberty, or property without due process of law, but originalists have been unable to develop an account of what type of process should be considered “due” based on a framing-era understanding of due process. Their failure has important implications for originalism as a method of constitutional interpretation. This paper argues that the objections to the view that the two Due Process Clauses forbid procedural innovation subsequent to their ratification are more than consequentialist -- they are originalist as well. An inquiry into the original understanding of due process shows that the original meaning of these constitutional provisions – and perhaps many others – was of an evolutionary and common law character.
This article considers the original understanding of procedural due process, and demonstrates that by the time of the Fourteenth Amendment’s Due Process Clause was ratified, the Supreme Court had decisively rejected the understanding of due process contained in the law of England, which had afforded nearly absolute deference to legislative innovation, but had replaced it with no clear or coherent account. As of 1868, due process operated not as a fixed set of rules – the meaning of due process at the time of the framing was too amorphous to support that view – but instead to delegate to the judiciary responsibility for countermajoritarian oversight of the manner in which persons are deprived of life, liberty, or property. This evolutionary and common-law conception of due process is consistent with the evolutionary character of civil and criminal procedure up until the adoption of the Due Process Clause, as well as the tradition of common law constitutional adjudication that had taken firm root by 1868. In short, the original meaning of the Due Process Clause was nonoriginalist.
This account has implications for substantive due process as well. If the concept of due process was intended to evolve through common law adjudication, surely that was equally true for its procedural and substantive components. Indeed, the original meaning of much of the Constitution may be nonoriginalist
Sovereignty along el Río Bravo/the Rio Grande: Changes in US Immigration Law and Mexican Foreign Relations Law
No full textCodifying Copyright\u27s Misuse Defense
No full textAlthough courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b): It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section. The present paper documents § 107(b)\u27s codification of the judicial precedents, offers legislative history explaining the proposed statute, and discusses how the new law would work in the real world. Although the proposed codification of copyright misuse would in large part simply rationalize what courts have already said, it would also promote the salutary policy goal of encouraging the owners of expressive works to forego copyright rights in lieu of common law ones
If you (re)Build it They Will Come: Contracts to Remake the Rules of Litigation in Arbitration\u27s Image
No full textThe Supreme Court describes the right to trial by jury in a civil action as a basic and fundamental right that is sacred to the citizen and therefore should be jealously guarded by the court. But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right - which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure - may be used as a bargaining chip, are there any limits on parties\u27 ability to modify the rules of litigation in their ex ante contract? Will the courts enforce an agreement that limits discovery to an exchange of documents? That limits direct testimony to written affidavit and prohibits a witness from appearing other than for cross-examination? That sets the requisite standard of proof in a civil case as clear and convincing evidence rather than a preponderance of the evidence? That permits the parties to substitute their own rules of evidence in place of the Federal Rules of Evidence? The likely answer to each of these questions is Yes.
This Article concludes that there are very few limits on contract parties\u27 ability to modify the rules of litigation. There is a presumption that litigation rules may be modified by an ex ante contract. If Congress has not expressly stated otherwise, parties may negotiate and modify any litigation rule by ex ante contract that the parties may waive during litigation or by electing arbitration. If the contract satisfies standard contract law requirements and (if required) was made knowingly, voluntarily, and intelligently, the contract will be subject to specific enforcement. Within these bounds, ex ante contracts to modify the rules of litigation can accomplish nearly all of the procedural benefits of arbitration. But modified litigation can be superior to arbitration. The parties get a neutral decision-maker, who is free of bias and uninhibited by the repeat-player syndrome of arbitration\u27s judges-for-hire. The parties retain their right to full appellate review. These disputes also remain in the public domain, moving from the shadows of arbitration to the light of litigation. Finally, this freedom of contract adds value to the litigation rights. Because the litigation rights may be exchanged for consideration they are more valuable
Promoting Experimental Economics in the Classroom
No full textEconomic experiments allow the K-12 teacher to promote active learning that is also rigorously grounded in economic theory. In an experiment students test for themselves the economics they hear in lectures and read in their textbooks. The authors have found that working through the existing teacher professional development system is a promising approach to infusing experimental methods into the school curriculum. This paper describes a short professional development course in experimental economics. The experience of conducting the course with two groups of teachers is discussed and survey results pertaining to teacher implementation of classroom experiments are presented
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 organizations in a manner that served their own goals. The 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
Holding Enemy Combatants in the Wake of Hamdan
No full textThe article offers, inter alia, a succinct survey of the historical and jurisprudential background for the detainee cases and military commissions cases - including a number of important factual details glossed over in most reporting on the cases (e.g., Padilla has stipulated that he was an enemy spy sent to the United States; it was Hamdan\u27s own defense counsel who had asked to exclude him from the voir dire portion of the proceedings) - as well as legal issues that may still arise
In the Heat of the Law, It\u27s Not Just Steam: Geothermal Resources and the Impact on Thermophile Biodiversity
No full textSignificant research has been conducted into the utilization of geothermal resources as a ‘green’ energy source. However, minimal research has been conducted into geothermal resource utilization and depletion impacts on thermophile biodiversity. Thermophiles are organisms which have adapted over millions of year to extreme temperature and chemical compositions and exist in hot springs and other geothermal resources. Their ability to withstand high temperatures makes them invaluable to scientific and medical research. Current federal and California case law classify geothermal resources as a mineral, not a water resource. Acquisition of rights to develop a geothermal resource owned or reserved by the federal government is authorized by the Geothermal Steam Act of 1970 which was designed to promote utilization of geothermal resources. Similarly, current California law promotes the utilization of geothermal resources. While NEPA and CEQA apply in federal and state geothermal resource development respectively, thermophile biodiversity is significantly threatened due to a lack of knowledge and classification of thermophile species. California law under the Public Resources Code provides for the prevention of damage to geothermal deposits, reservoirs and water, but not for the species that live in them. This article will show that current federal and state law applicable to California promotes the over utilization of geothermal resources which threatens thermophile biodiversity