SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Does the First Amendment\u27s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets?
No full textTestimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, contending that Section 798 of the Espionage Act, prohibiting the publication of classified information regarding U.S. communications capabilities, can constitutionally be applied to the media, for several reasons: 1) A majority of the Justices in the Pentagon Papers case recognized that prior restraints on publication of highly sensitive, classified information regarding ongoing military and communications operations would be permissible; 2) The prospect of post-publication liability for violating the Espionage Act was also recognized by a majority of the Justices; and 3) The Freedom of Press Clause of the First Amendment is equally applicable to citizens and the institutional media
The Propriety of a Judge\u27s Failure to Recuse when Being Considered for Another Position
No full textSome commentators have argued that Judge John Roberts, recently confirmed as Chief Justice of the United States Supreme Court, violated a federal statute because of his failure to recuse himself in the case of Hamdan v. Rumsfeld, which a panel of the D.C. Circuit including Roberts recently decided. Several Senators raised the issue of Judge Roberts\u27 failure to recuse himself during the course of his confirmation hearings, but the Judge did not comment on it because the case was still pending.
Any proposed jobs recusal rule, which would require a judge to recuse himself in such circumstances, imposes costs that greatly exceed any perceived benefits. It would empower members of the Administration to manipulate who sits on panels simply by considering one or more judges for other positions, and would be contrary to long historical practice, because judges often consider other positions in Government. A long line of historical precedent shows that it is common for judges to accept or consider appointment for other judicial offices or for other positions in the Executive Branch. The few cases on the issue, like Laxalt v. McClatchy, 602 F. Supp. 214 (D. Nev. 1985), and Mistretta v. United States, 488 U.S. 361, 409-10 (1989) come to the same conclusion: judges who do not recuse themselves from cases involving the federal government do not violate 28 U.S.C. § 455(a) even though they are considered for elevation to a higher judgeship or later accept such an appointment.
A new Jobs Recusal Rule would also call into question a long line of historical precedents. Throughout our history, the President has elevated lower court judges to a higher bench, or elevated Associate Justices to Chief Justice; appointed justices to other posts, either permanently, or for a limited time; and selected lower court judges to fill other positions in the Executive Branch. Judge Roberts, like his predecessors before him, followed the historical and legal precedent when he did not recuse himself from all cases involving the federal government simply because the Administration considered him for a Supreme Court appointment
The Crime Drop and Racial Profiling: Toward an Empirical Jurisprudence of Search and Seizure
No full textConstitutions
No full textIn the past decade, a number of state courts have found a new fundamental right to education in centuries-old state constitutional provisions. These courts have then used the fundamental rights determinations to establish levels of educational funding that, in the court\u27s view, are required to be constitutionally adequate , and even to mandate the content of the curriculum itself, ignoring considered legislative judgments to the contrary in the process. In this paper, I explore the historical understanding of the actual language of the state constitutional provisions on which these new state court decisions rest, concluding that in almost every instance the original provisions were designed to set only hortatory goals for the legislature, not to confer judicially-enforceable individual rights to certain levels of financial support for, or quality of, public education. I next consider some recent constitutional amendments that might be read as supporting the fundamental rights holdings, and conclude that in most cases these amendments, too, fall short of conferring a judicially enforceable right to a constitutionally mandated adequate public education. Finally, I take issue with the judicial holdings that have, through the use of fundamental rights determinations, injected themselves into what is inherently a policy judgment, reserved by the state constitutions to the political branches of government, and conclude with a cautionary note about the threat to participatory democracy these holdings might pose
Exchange and Specializiation as a Discovery Process
No full textIn this paper we study the performance of an economic environment that can support specialization if the participants implement and develop some system of exchange. We define a closed economy in which the participants must discover the ability to exchange, implement it, and ascertain what they are comparatively advantaged in producing. Many people demonstrate the ability to find comparative advantage, capture gains from trade, and effectively choose production that is consistent with the choices of others. However, many do not become specialists, even though full efficiency can only be achieved if everyone does so. Near-full efficiency does occur bilaterally in these economies, typically because some individuals have entered a stable trading relationship with a specialist in the other good. Such pairing does not necessarily give impetus to the formation of other pairs, nor are pairs open to the inclusion of a third party. We explore various treatments to provide insight into the conditions that might foster the growth of specialization and exchange within this austere institutional framework. We find one treatment that achieves high levels of efficiency in half of the sessions
Transfiguration of the Deadbeat Dad and the Greedy Octogenarian: An Intratextualist Critique of Tax Refund Seizures
No full textIn light of the federal government\u27s plenary collection powers, the states have, for several years, sought and, with the help of Congress, managed to secure the assistance of the United States in obtaining various forms of revenue. As early as 1975, Congress authorized the Department of the Treasury to collect past-due, child-support payments in the same manner in which it assessed and collected certain federal taxes under emergency or exigent circumstances (i.e., jeopardy assessment/collection). Because such collection procedures were often considered cumbersome and costly, however, Congress soon authorized the direct seizure of pending income tax refunds as a more efficient means of reaching the assets of deadbeat dads (or the occasional deadbeat mom). The result has been a smashing success. Child-support-related refund seizures have resulted in the collection of billions of dollars of revenue. In fiscal year 2004 alone, child-support offsets totaled 14.2 billion. Given the success of this approach to revenue collection, its rapid deployment to other areas should come as no surprise. In the Deficit Reduction Act of 1984 (DEFRA), Congress authorized the seizure of amounts due to federal agencies (e.g., student loan default amounts or overpayments of Old Age, Survivors, and Disability Insurance (OASDI or Social Security)). And more recently, in 1998, Congress authorized federal refund seizures to pay outstanding state income tax liabilities.
In this Article, I argue that despite various protective measures, procedural improvements are needed to minimize or eradicate erroneous refund-based property deprivations as an initial matter, especially with respect to nonobligated spouses. I proceed to argue, based largely on an intratextualist reading of the Constitution\u27s major tax provisions, that regardless of whatever procedural safeguards exist or happen to be put in place, refund seizures, as a class, are unjustified as a matter of substantive due process because both the Sixteenth Amendment and Article I, section 8 of the Constitution expressly limit Congress\u27s income taxing powers. Federal courts have had no recent opportunity to address substantive due process issues because the governing statute itself serves as a bar to jurisdiction
The Blogosphere and the New Pamphleteers
No full textThe future of the free dissemination of information lies in the blog, some may say. The internet has entirely transformed how we receive and consume information. It’s the newest incarnation of information dissemination. From the insights of Alexis de Tocqueville, “Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed only by the reciprocal influence of men upon one another.” Bloggers are a powerful force in the distribution of information and ideas and the creation of communities of conversation. Throughout history, the dissemination of information, news, opinions, and ideas has continuously transformed. In the 18th Century, there was the town crier, the pamphleteer, hand-billing, leafleting and the emergence of the newspaper. Later, radio and then television emerged in the 20th Century. There has been a constant advancement in the dissemination of information, and the internet is the latest medium. The blog is essentially today’s version of the pamphleteer. Spontaneous order is at play in this modern marketplace of ideas. The blogosphere is truly a transformation and a popular revolution in the provision of information. This Article presents an historical perspective on information flow and the marketplace for ideas, and argues that the blogosphere is merely a technological transformation and stimulus of traditional pamphleteering – an individual’s opportunity to introduce his ideas to the community
