SelectedWorks @ Chapman University Dale E. Fowler School of Law
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O Direito de Dissidência e a Dívida dos Estados Unidos com Heródoto e Tucídides
No full textEnglish translation available. See The Right of Dissent and America’s Debt to Herodotus and Thucydides. Os Estados Unidos se orgulham por ser um país que respeita a liberdade de expressão, o direito que todos indivdÍduos têm de criticar o governo, mesmo em tempos de guerra. Contudo, nem sempre foi assim. Os eventos relacionados à Primeira Guerra Mundial trouxeram os primerios casos submetendo questões de liberdade de expressão à Suprema Corte dos Estados Unidos. Enquanto diversos Justices, em particular Oliver Wendell Holmes, louvavam a liberdade de expressão, a Corte confirmava todas as perseguicões do governo a seus dissidentes. Demorou cerca de um século até que aqueles casos da Suprema Corte encerrassem o ciclo e, agora, passassem a proteger aqueles que criticam o governo em tempos de guerra. Quando a Corte mudou suas visões para criar a moderna protecão, ela repousou sobre justificacões filosóicas em prol da liberdade de expressão que retornam todo o trajeto para os antigos Gregos, há 2.400 anos. As justificacões modernas em defesa da liberdade de expressão recai sobre estes filósofos da Grécia Antiga. Há pouca novidade sob o sol. Enquanto governos tipicamente acreditam que, em nome do interesse público, eles precisam censurar o discurso e reprimir dissidentes em tempos de guerra, os Gregos acreditavam que a liberdade de expressão os tornava mais fortes, e não mais fracos. Há aqueles que alegam ser mais difÍcil para uma democracia deflagrar em guerra, proque não pode conduzi-la com sucesso se o povo se opuser e se seus dissidentes permanecerem livres para criticar. Isso é coisa boa, não algo ruim. Em tempos modernos, nenhuma democracia tem guerreado contra outra. Conforme Péricles nos recorda, [o] grande obstáculo à acão é, em nossa opinião, não a discussão, mas a carência do conhecimento que se ganha com a discussão preparatória à própria acão. À medida que outros paÍses incorporam a democracia e as protecões para dissidentes, nossas liberdades expandidas nos proporcionarão mais paz e menos guerra
The Right of Dissent and America’s Debt to Herodotus and Thucydides
No full textThe United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war
Keepings
No full textIndividuals usually prefer to keep what they own; property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. Just as we hold affection and attachment for our memories, captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.We often focus on the means of acquisition or transfer in property law. We look less often at the legal rules that support one’s ability to keep what one owns. Yet, it is precisely the ability to keep property that motivates its acquisition. This ability serves as a necessary element in offering any property up for sale. The property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer—which can only exist if the owner also has the authority to keep it, i.e. not transfer—and with the buyer’s confidence in her own ability to keep the property once she acquires it in the transfer.This Article catalogs and evaluates a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purpose of aiding owners in keeping their property. I use “keepings” and “keepings rules” as terms that refer collectively to these parts of the substantive law, procedural rules, and legal infrastructure. Included is an analysis of keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system
A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective
No full textOur land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets
The Perilous Psychology of Public Defending
No full textThis article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of certain guilty offenders, such as murderers or child molesters, but to representation of those who claim to be innocent and especially those who actually seem to be innocent, where a full-blown defense, through trial, would be expected to require an extraordinary commitment of time and effort from an overtaxed public defender
Direct Democracy as a Legislative Act
No full textDirect democracy has been referred to as “The People’s Law” and “Citizen Lawmaking.” The actors who engage in acts of direct democracy have been referred to as “Citizen Lawmakers” and “Citizens as Legislators.” Does that mean that citizens who engage in acts of direct democracy are literally (and legally) “legislators” undertaking legislative acts? This Article argues that, at least in certain situations, the answer is “yes” and considers the implications of that conclusion
