SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush v. Gore?
No full textThe premise of the hot topics panel at the 2005 AALS convention was that the Rehnquist Court had in 2004 retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington and Blakely v. Washington, and also in the trilogy of terrorism cases, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush. This article argues that the premise of the panel was flawed, based as it was on a stereotypical yet false view of the Rehnquist Court. The Rehnquist Court\u27s legacy was never about preferring law and order outcomes over civil liberties outcomes, or about siding with the government at the expense of individual criminal defendants. Rather, the Court\u27s legacy - and it was only modestly and rather inconsistently successful in this - was the revival of an originalist constitutionalism that took seriously the limits on governmental power actually detailed in the text of the Constitution itself, while also preserving the textual commitment to separation of powers and federalism. With this legacy in mind, I contend in Part II of the Article that the Sixth Amendment cases - or more precisely, the position in those cases of Justices Scalia and Thomas, the Court\u27s two most devoted originalists - are perfectly consistent with the Rehnquist Court\u27s broader devotion to principles of constitutionalism. In Part III, I take up the trilogy of terrorism cases and argue that, contrary to popular understanding, those cases actually reflect a proper deference to the executive branch in the exercise of its war-making powers. Finally, I take up in Part IV what I consider to be one of the most interesting aspects of this group of cases: Justice Scalia\u27s apparent invitation in the Hamdi case to revisit the current understanding of birthright citizenship, which has long ignored a crucial component of the Constitution\u27s text. I contend that the subject to the jurisdiction part of the Citizenship Clause means allegiance-owing jursidiction rather than mere territorial jurisdiction, and that as a result the Constitution does not mandate citizenship for the children of temporary visitors to the United States, particularly those who are here illegally
\u27China Casts a Giant Shadow\u27: The Developing World Confronts Trade Liberalization and the End of Quotas in the Garment Industry
No full textThis article examines the implications for developing nations of the termination of the thirty-year system of quotas in the global trade in garments and textiles. The quotas fostered the spread of manufacturing throughout the developing world by permitting importing nations to cap imports from specific countries. Developing nations became attractive manufacturing locations thanks to their access to the restricted U.S. and EU markets. The garment industry permitted even the poorest nations to participate in the global economy in an environment largely protected from the harsh realities of unfettered international competition. However, the structure of globalization in the garment industry, with its characteristic distribution of manufacturing around the world, now appears extremely fragile. The ending of the quota system on January 1, 2005, seems likely to result in a massive concentration of manufacturing capacity in China. The geographic diversification of manufacturing encouraged by the quota system may simply evaporate. The economic, political and social fall-out of this rapid shift to China is likely to be profound, particularly for those developing countries in which the garment industry is the prime - or even sole - point of contact with the global economy. In those countries, not only is the garment industry the cornerstone of the national economy, but the garment factories frequently provide the only viable employment for millions of women who are the sole wage earners for their families
Prediction Markets for Promoting the Progress of Science and the Useful Arts
No full textCopyrights and patents promote only superficial progress in the sciences and useful arts. Copyright law primarily encourages entertaining works, whereas patent law mainly inspires marginal improvements in mature technologies. Neither form of intellectual property does much to encourage basic research and development. Essential progress suffers.
Prediction markets offer another way to promote the sciences and useful arts. In general, prediction markets support transactions in claims about unresolved questions of fact. A prediction market specifically designed to promote progress in the sciences and useful arts - call it a scientific prediction exchange or SPEx - would support transactions in a variety of prediction certificates, each one of which promises to pay its bearer in the event that an associated claim about science, technology, or public policy comes true. Like other, similar markets in information, a scientific prediction exchange would aggregate, measure, and share the opinions of people paid to find the truth.
Because it would reward accurate answers to factual questions, a SPEx would encourage essential discoveries about the sciences and useful arts. Researchers and developers in those fields could count on the exchange to turn their insights into profit. In contrast to copyrights or patents, therefore, a SPEx would target fundamental progress. Furthermore, and in contrast to copyrights and patents, the exchange would not impose deadweight social costs by legally restricting access to public goods. To the contrary, a scientific prediction exchange would generate a significant positive externality: Claim prices that quantify the current consensus about vital controversies.
This article measures copyright and patent law against the Constitution\u27s call for promotion of the Progress of science and useful Arts, to find those traditional forms of intellectual property lacking. As a cure for that policy failure, it suggests scientific prediction exchanges. Given that such exchanges offer the promise of large net public and private benefits, why don\u27t they already thrive in the United States? Because the laws written for commodity futures, securities, and gambling markets cast a pall of legal uncertainty over scientific prediction exchanges. To ease that unwarranted burden, the article explores a variety of strategies designed to guarantee the legality of scientific prediction exchanges. The article concludes with an all-too-apt illustration of how legal risks can discourage prediction markets from promoting the progress of science and the useful arts
Historical Property Rights, Sociality, and the Emergence of Impersonal Exchange in Long-Distance Trade
No full textThis laboratory experiment explores the extent to which impersonal exchange emerges from personal exchange with opportunities for long-distance trade. We design a three-commodity production and exchange economy in which agents in three geographically separated villages must develop multilateral exchange networks to import a third good only available abroad. For treatments, we induce two distinct institutional histories to investigate how past experience with property rights affect the evolution of specialization and exchange. We find that a history of un-enforced property rights hinders our subjects\u27 ability to develop the requisite personal social arrangements necessary to support specialization and effectively exploit impersonal long-distance trade
The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel
No full textThis article addresses the right to postconviction counsel in capital cases - a right that is absolutely crucial to protecting innocent capital inmates from wrongful execution. It is no secret that indigent capital inmates who wish to pursue their state postconviction remedies have no constitutional right to counsel, and instead must rely on statutory grants of counsel. While numerous death penalty states have seen fit to provide a mandatory statutory right to postconviction counsel, a handful of death penalty states, including Alabama, provide only a discretionary right to such counsel. But in Alabama, which at the time of this writing has the fifth largest death row population and ranks in the top eleven among death penalty states in terms of number of exonerations of capital inmates, the situation is even worse: All indigent capital inmates in Alabama who wish to pursue state postconviction remedies must prepare and file the postconviction petition on their own and survive summary dismissal before a court will even consider whether to appoint counsel to assist the inmate. In other words, the capital inmate must do the work of counsel - and do it well enough to survive dismissal - before the court will determine whether, in its discretion, counsel is necessary. As should be obvious to even a casual observer, it is extraordinarily difficult, if not impossible, for a capital inmate to accomplish this task, as it requires not only detailed knowledge of postconviction law and procedure, but also the capacity to investigate the case and discover all possible claims to include in the petition. This article explains that, by deciding to provide counsel as a matter of statutory grace, Alabama has acquired a constitutional duty, anchored in the Due Process Clause, to provide a meaningful right to capital postconviction counsel. Unfortunately, Alabama has failed to meet that duty. Forcing indigent capital inmates to run the postconviction course alone - even for a brief time - undermines the very purpose of granting postconviction counsel in the first place, which by Alabama\u27s own admission is to protect the rights of the capital inmate. In short, Alabama\u27s system provides nothing more than an empty promise. And for the almost 200 inmates currently on death row in Alabama, that simply is not enough
A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings
No full textTheories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As for corrective justice, the government passes its legal costs along to the taxpayers, who bear little if any culpability for the underlying tortious conduct. Thus, corrective justice also supplies little support for public-sector tort liability. Indeed, there is an emerging consensus among legal scholars that government tort liability lacks a coherent justification.
In this article, I endeavor to show that the emerging consensus is wrong. To do so, I anchor the justification for government tort liability in a theory of political behavior. I look to politics because the government responds primarily to political costs and benefits, whereas private tortfeasors respond primarily to economic rewards or punishment. In my view, government tort liability exacts a political price by diverting the funds used to pay judgments and other litigation costs from what elected officials regard as the politically optimal use of those funds. Therefore, government liability creates a political incentive to invest in loss prevention in order to maximize political control over public resources. This theory, however, does not argue for unlimited government liability; to the contrary, it also provide a justification for many of the immunities that limit government liability
Listening to the Enemy: The President\u27s Power to Conduct Surveillance of Enemy Communications During Time of War
No full textEver since the New York Times published classified information in December 2005 about the efforts by the National Security Agency to intercept enemy communications to or from sources in the United States (as authorized by the President in his capacity as Commander-In-Chief), there has been a great hew and cry about the President\u27s illegal conduct. Calls of impeachment have even been heard, both in the media and in the halls of Congress. The Congressional Research Serviced weighed in at the request of members of Congress, concluding that it might be argued that the President had violated the Foreign Intelligence Surveillance Act, a statute adopted by Congress in the late 1970s. In stark contrast, the President, backed by a lengthy legal analysis by the Department of Justice, defended both the legality and the necessity of the NSA surveillance program to the overall war against terrorism. This article assesses those competing claims, analyzing the constitutional design and Supreme Court precedent along the way to concluding that the President has the stronger argument. It then contends that the New York Times violated the Espionage Act for publishing classified information about the program. The current controversy over the President\u27s surveillance program, like the controversies over the Boland Amendment in the 1980s, the War Powers Act in the 1970s, and countless other statutory efforts by Congress to limit the President\u27s executive powers, force us to give serious consideration to the Founder\u27s constitutional design
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
