SelectedWorks @ Chapman University Dale E. Fowler School of Law
Not a member yet
1539 research outputs found
Sort by
The Power to Control Immigration is a Core Aspect of Sovereignty
No full textWhere in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. But I think it is so clearly a power given to Congress and that such was so well understood at the time of our founding that the Constitution did not even need to specify it. Even so, I think the Constitution does specify it. The notion that the power to regulate immigration is not contained within the power of naturalization is an anachronistic view of the latter power that understands naturalization merely to confer citizenship and not as having anything to do with who can immigrate into this country in order to obtain citizenship
“Gatting” the New Climate Treaty Right: Leveraging Energy Subsidies to Promote Multilateralism
No full textIn a previous paper, Trading Up Kyoto: A Proposal for Amending the Protocol, I argued that not only do international trade rules, specifically the operation of the World Trade Organization( WTO ) agreements, hinder international climate change treaty negotiations, but also that applying exceptions to circumvent trade rules is doctrinally difficult and normatively unsettling, primarily because of WTO jurisprudence, the colorable intent of nations that are violating WTO rules in the guise of mitigating climate change, and the challenges to creating environmental exceptions to trade rules to facilitate emissions reduction. To illustrate this point, I focused on ongoing trade disputes involving a few renewable energy subsidies through which some nations are apparently seeking to reduce their emissions. I then argued that an effective climate change treaty should counteract the impact of trade and trade rules.In this Article, I argue that nations should negotiate a plan to phase out harmful subsidies, particularly fossil fuel subsidies. The idea of eliminating subsidies is not new. It has been considered an important solution to reduce greenhouse gas emissions, and one that can complement WTO rules. This Article adds another dimension to this solution, i.e. leveraging subsidies within the new climate change treaty to encourage multilateralism. Multilateralism is essential to address the leakage and competition problems arising from the non- participation of all major greenhouse gas emitters. Effective unilateral measures to counter leakage violate WTO rules. I argue that nations can counteract this problem by incorporating into the new climate change treaty a mechanism to phase out harmful subsidies in exchange for a right to provide beneficial subsidies as one policy tool that would promote climate change mitigation efforts significantly. This proposal would complement, and not replace, existing provisions; would comply with WTO rules; would mimic other international environmental treaties, notably CITES, the Basel Convention, and the Montreal Protocol, which have addressed tensions between trade and an environmental problem by incorporating trade measures within the treaty
Book Review: The Once and Future King: The Rise of Crown Government in America
No full textIf you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries
Unconstitutional Quartering, Governmental Immunity, and Van Halen\u27s Brown M&M Test
No full textThe jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey. But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the United States, all levels of government—federal, state, and local—enjoy immunity from civil lawsuits. Courts have moreover extended this privilege from sovereigns to their officials; hence Engblom’s refusal to hold New York officials liable for violating the Third Amendment and various common law rights. Few people today worry about the quartering of troops. More people should worry, though, about governmental immunity. Inspired by the sort of royal privileges that the Constitution expressly rejects, and invented by public officials all too eager to exempt themselves from ordinary civil liability, governmental immunity can claim neither an honorable pedigree nor very convincing policy justifications. Like brown M&Ms backstage at a Van Halen concert, the Engblom court’s refusal to remedy violations of the Third Amendment signals a more serious problem: The doctrine of governmental immunity leaves the victims of wrongdoing by sovereigns and their officials without judicial relief. We would do better to treat the government the way that the common law treats private communities, relying on independent third parties to adjudicate disputes and holding both the community and its agents liable for their wrongs. Englom v. Carey, 677 F.2d 957,957 (2d Cir. 1982)
The NBA and the Great Recession: Implications for the Upcoming Collective Bargaining Agreement Renegotiation
No full textLike most businesses, the National Basketball Association (NBA) has suffered significant negative impacts from the Great Recession. The league\u27s drop in revenue exposed distinct flaws in the NBA\u27s current business model and in the terms of employment for NBA players. Due to the precarious economic state of the NBA, the league anticipates a contentious, but necessary, renegotiation of the NBA\u27s collective bargaining agreement (CBA), which will expire at the end of the 2010-11 season. This article will analyze the effects of the Great Recession on the NBA and the likely implications for the renegotiation of the CBA. Part II of this article will provide a macro-level overview of the economic impacts experienced by the NBA during the current economic meltdown. Part III will explore the attendant effects on NBA players. Part IV will then give an overview of the collective bargaining process-including its significance in sports, antitrust, and labor and employment law-and explore the employment terms that will likely become the focus of the upcoming CBA renegotiation. Finally, Part V will provide some concluding insights