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Structural Orginialism: A Second Amendment Case Study
No full text“Originalism” is having a national moment, even if it is not entirely clear what the word means. What should we be originalist about? The leading academic approach asks us to parse the communicative content of text ratified in a very different linguistic culture; then construct a modern legal meaning consistent with our semantic speculations. Too often the result enforces policy judgments made in a radically different moral and technological world. This makes very little sense.
In this paper I recommend a more perspicuous and coherent use of constitutional history, which I call “structural originalism.” Rather than saddle ourselves with the political judgments of an historical society, we ought instead seek to preserve the decision-making processes—the institutional structures—the Constitution establishes. This approach binds us to the historical mainmast without privileging the outdated and regressive political worldviews of a different time.
I then apply this method to a modern and pressing constitutional case study: gun regulation and the Second Amendment. I make the structural case that the Constitution assigns the care of two distinct natural rights to two distinct constitutional institutions. The Second Amendment locates the right of revolution in the universal militia, while the common law entrusts the right to individual self-defense to the jury. The result of this structural clarity is that state governments may regulate the weapons of private defense by statute or common law, so long as they do not discriminate based on race
Can Ukrainians Claim Compensation for War Damage Under the Russia-Ukraine Bit? An International Investment Law Experiment
No full textReckoning with the Violent Legacy of Racialized U.S. Foreign Policy in Chile
Full text linkCritical Race Theory scholars have shone a spotlight on the legal underpinnings of imperial power and violence in numerous topics, including foreign policy. Absent from this critical scholarship is an analysis of United States interference in South American affairs. In centering the violent histories of dispossession and enslavement, I propose a rethinking of modern U.S.-Chile relations, with a particular eye to the role of the U.S. in the rise and brutal regime of the Augusto Pinochet dictatorship. As an imperial power, the U.S. exported and embedded racial violence in Chilean society. The effects of this practice are most evident in the racial character of state terror and economic oppression perpetrated by Pinochet against the Chilean people. With the recent failure of Chile’s constitutional reform referenda and reignited debates over the U.S. role in geopolitical affairs, this article applies an analysis of history and the law to illuminate how the specter of racial violence pervades society and law in the U.S. and Chile. I conclude with a call for a reparative reset, proposing declassification of U.S. interference in Chile and a binational search for truth and reconciliation
Privacy Violations in Election Results
No full textAfter an election, should election officials release a copy of each anonymous ballot? Some policy-makers have championed public disclosure to counter distrust, but others worry that it might undermine ballot secrecy. We introduce the term vote revelation to refer to the linkage of a vote on an anonymous ballot to the voter\u27s name in the public voter file and detail how such revelation could theoretically occur. Using the 2020 election in Maricopa County, Arizona, as a case study, we show that the release of individual ballot records would lead to no revelation of any vote choice for 99.83% of voters as compared to 99.95% under Maricopa\u27s current practice of reporting aggregate results by precinct and method of voting. Further, revelation is overwhelmingly concentrated among the few voters who cast provisional ballots or federal-only ballots. We discuss the potential benefits of transparency, compare remedies to reduce or eliminate privacy violations, and highlight the privacy-transparency trade-off inherent in all election reporting
Ending JLWOP in America: A Measured Approach to Building a Categorical Ban on Unreviewable Juvenile Life Sentences
Full text linkThe harmful impact of life without parole sentences on American juveniles is layered and far-reaching. Incarcerated juveniles are often exposed to threat and abuse, all while being separated from their family and any semblance of social support during a uniquely formative time. Numerous psychological and neurological studies have determined that juvenile confinement exacerbates negative neurodevelopmental and quality of life outcomes. Allegations and recorded instances of physical abuse in both the juvenile legal system and for juveniles facing imprisonment in adult correctional institutions only compounds the issue. Punitive discipline, the threat of sexual assault, and emotional maltreatment also prove detrimental to overall functioning. As a result, many juvenile lifers report intense feelings of hopelessness, fear, and anger that often manifest in severe anxiety and depression.
Amidst these bleak outcomes and accompanying calls for reform, some states have chosen to do away with juvenile life without parole (JLWOP) sentences. Nonetheless, some jurisdictions continue to uphold the anachronistic practice.
This paper sets out a measured approach to systematically ban JLWOP in all states that have yet to abolish it. By incorporating history, case law, public sentiment, and practical limitations, the strategy offered aims to provide potential incremental solutions. The ultimate goal, however, is to collate a compelling constitutional argument for the U.S. Supreme Court to one day eliminate JLWOP altogether
Criminal Law Matters: Bad Check Crime and Economic Development in Postwar Taiwan
Full text linkThis article contributes to law and development literature by investigating the relationship between economic growth and criminal law in postwar Taiwan. Traditionally, law and development studies focuses on laws with direct influences on economic performance. Using the bad check crime as an example, this article demonstrates its importance, substantive and procedural, to Taiwan’s economic development after World War II (WWII). This article finds that, in addition to sanctioning past criminal behavior, deterring future crimes, or acting as an alternative mechanism for maintaining social order, criminal law also served the purpose of backing up Taiwan’s economic growth. Also, despite the criticism accompanying its legal development, the bad check crime persisted and did not get repealed until it lost its economic importance and caused severe social problems due to its overuse. This article hence makes two theoretical contributions. First, criminal law may serve a purpose of economic growth as other economic laws do. Second, such criminal laws get repealed not on legal grounds, but on social-economic ones
The Economic Case for Liberalized Immigration Policies
No full textThis chapter outlines the economic case for liberalized immigration policies. First, this chapter assumes the objective is to promote global welfare, giving equal weight to the interests of each person. This chapter then relaxes this assumption and turns to the question of the national interest, giving priority to the welfare of natives in the country of immigration. Liberalized admissions improve social welfare by allowing immigrant workers and the economies that employ them to enjoy gains from trade in the labor market, which promote global welfare and advance the economic interests of natives in the country of immigration. To the extent that immigration raises concerns about environmental protection, the segregation of cultural communities, the distribution of income among natives, or fiscal concerns, there are less restrictive alternatives to immigration restriction that are more narrowly tailored to the problems in question. These alternatives do not sacrifice gains from trade in the labor market and thus avoid the collateral damage caused by immigration restrictions. Furthermore, immigrants may enjoy other important gains from migration, including freedom from persecution or family reunification, and natives enjoy other gains from trade with immigrants outside the labor market
Default Procedures
Full text linkIn vast numbers of debt-collection cases, defendants never appear. Courts then routinely issue default judgments, often rubber stamping complaints with little or no examination of the underlying facts, on the implied justification that absent defendants have waived their right to a hearing or effectively conceded to the plaintiff ’s case. Many other reasons likely cause these absences, however, and potentially meritorious defenses are never raised. Plaintiffs, meanwhile, are predominantly repeat-player debt buyers whose service efforts and proof of claim are sometimes inadequate. The resulting judgments can have devastating effects on people’s credit, employment, and housing, reflecting and exacerbating social, economic, and racial inequality
Policing as General Warrants
Full text linkThe drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen—many of them engaged in smuggling— found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public safety and criminal investigations were largely left to the states. State responses to criminal behavior were the province of institutions with limited powers, such as sheriffs and watches, though slave patrols in the southern states exercised broader search and seizure powers. These state institutions rarely provoked challenges under state constitutional protections, leaving the limits of both state and federal constitutional protections untested.
While the Fourth Amendment’s protections were not initially read to apply against the states, the Fourteenth Amendment aimed to extend the full range of constitutional rights to all citizens, including newly free Black Americans. In practice, the novel institution of professional policing emerged in the decades before the Civil War as a response to perceived disorder and criminal behavior. Police became more proactive in cities to suppress labor unrest and organized crime, conducting investigations on their own initiative long before any evidence was presented to a judicial officer. Anti-union policing saw government agents and their business allies develop undercover tactics and engage in mass violence in the name of law and order. Few targets of professional policing’s broader search and seizure powers challenged their arrests, convictions, or assaults under the Reconstruction Amendments in the Nineteenth Century. By the time courts effectively applied the Fourth Amendment against the states, police forces had essentially assumed the powers of the slave patrols against all free people.
The modern practice of policing by means of roving, armed government agents conducting frequent, warrantless searches replicates the abuses of general warrants and writs of assistance. The application of those powers to undermine democratic remedies for economic injustices replicates the abuses of the slave patrols. This Article takes up the novel argument that in doing so, modern policing violates the Fourth and Fourteenth Amendments. While constitutional rights are necessarily open to interpretation by the courts, they should never be construed to provide less protection than they did when instituted. This Article advances the abolition constitutionalist proposition that the tools necessary to enact many of police abolition’s goals already exist within the Constitution. Reversing constitutional law’s historical errors to restore the common-law protections embodied in the Fourth Amendment would strip police of their slave patrol powers
Loper Bright\u27s Disingenuity
No full textLoper Bright prompted a tidal wave of reaction throughout the legal community when the Supreme Court announced it was overruling Chevron, the most frequently cited Court decision in administrative law. But Loper Bright cannot mean what it says. This article identifies three respects in which the majority opinion’s claim to have overruled Chevron distorts the real substance of the Court’s logic. First, we apply Loper Bright’s framework to the facts of Chevron and show that it would have produced the same outcome—if nothing else, an exceedingly curious result if Chevron were indeed overturned. Second, even as applied to other cases, the Loper Bright framework does not truly depart from the Chevron framework. Chevron’s premise was that Congress had delegated the authority to interpret an ambiguous statutory term in an agency’s enabling statute to the agency. Loper Bright may eschew the word “deference” but without changing the underlying analysis. We show that this kind of wordplay is of little value in making institutional decisions about the allocation of authority. Finally, the very craft of the Loper Bright opinion betrays the perils of the exercise that Loper Bright demands of reviewing courts. Loper Bright instructs judges to identify the “best reading” of administrative statutes, suggesting that an even-handed exercise in recovering semantic meaning can identify extant lines of authority in the administrative state. But the decision rests on an interpretation of the Administrative Procedure Act that is itself selective and slipshod. Ultimately, Loper Bright’s formalist rhetoric turns out to mask what is going on under the hood. When judges substitute their views of what is “best” for those of agencies, arguments about statutory meaning can quickly succumb to choices about policy. Avoiding such an outcome, of course, was one of Chevron’s core aims