{"title":"The Constitution as if Consent Mattered","authors":"T. Bell","doi":"10.2139/SSRN.2208731","DOIUrl":"https://doi.org/10.2139/SSRN.2208731","url":null,"abstract":"Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory. This theory maximizes the consent of the governed and, thus, the justifiability of constitutional authority.","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130048278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Civil Liberties Lost, Waterboarding and the Legacy of the Bybee-Yoo 'Torture-Power' Memorandum: Reflections from an Erstwhile Bush Administration Apologist","authors":"M. Darmer","doi":"10.2139/SSRN.1415790","DOIUrl":"https://doi.org/10.2139/SSRN.1415790","url":null,"abstract":"This symposium piece argues that waterboarding is torture and that torture is wrong. It reflects on the enduring legacy of the August 1, 2002 memo defining torture narrowly, which this paper describes as the Bybee and Yoo Torture and Power Memorandum [or 'BYTAP'].","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132265673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gulliver's Trials: A Modest Proposal to Excuse and Justify Satire","authors":"D. Green","doi":"10.2139/ssrn.937391","DOIUrl":"https://doi.org/10.2139/ssrn.937391","url":null,"abstract":"Satire and parody are both examples what copyright law denominates derivative works. And the two are, philologically, rather interrelated, while nevertheless remaining distinct categories. But, following ambiguous Supreme Court guidance, the status of the two genres in fair use defenses to allegations of copyright infringement is somewhat uncertain, and varies significantly amongst the circuit courts. Satire is the unequivocally underprivileged, when not categorically disallowed, genre in fair use evaluations. But refining, without changing, current judicial method in this area could serve to protect arguably more Useful Art, while leaving the current treatment of parody untouched. This article serves three distinct, but related, purposes: (1) to disambiguate, for copyright law purposes, the terms parody and satire; (2) to prove that protection, as fair use, for satire is constitutionally consistent - and, indeed, compelled - by both copyright and First Amendment jurisprudence; and (3) to recommend a judicial method by which to incorporate this view while leaving wholly intact all current precedent.","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130498126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The 'Necessary' History of Property and Liberty","authors":"R. Epstein, R. Epstein, R. Epstein","doi":"10.2139/SSRN.396600","DOIUrl":"https://doi.org/10.2139/SSRN.396600","url":null,"abstract":"The constitution contains many disparate structural provisions and guarantees of individual rights: federalism questions under the commerce clause start in very different places from the protection of speech, religion or property. Yet the differences are often misleading. In each case the structure of the argument is identical: what is the basic interest that is protected, what justifications can be posed for its limitation, with or without compensation. Where an intermediate or strict standard of review is proposed, the nature of these inquiries all collapse to the single question of whether government intervention overcomes some market imperfection relating to negative externalities (force and fraud) or monopoly and coordination problems. Where the standard of review is reduced to rational basis, then the structure of basic rights and the justifications for their restriction becomes ill-formed and ad hoc. The conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose.","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130436765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Missing Links in Tax Reform","authors":"Edward J. McCaffery","doi":"10.2139/SSRN.172995","DOIUrl":"https://doi.org/10.2139/SSRN.172995","url":null,"abstract":"There has been increasing rhetoric over the last decade about fundamental change in the nation's tax code. The reality of this period, in contrast, has featured minor changes within the existing structure and increasing complexity. This article argues that three inter-related factors -- the absence of more popular input, the failure of anyone in the political sphere to articulate sound and appealing basic principles, and the lack of a broadly acceptable policy alternative -- explain this gap. The article concludes with an argument for a progressive consumption tax as an example of a grand compromise that could help to achieve the goals of greater simplification and principle in tax.","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"11 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116811914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tobacco Product Warnings in the Mist of Vaping","authors":"J. Blum","doi":"10.2139/ssrn.3544915","DOIUrl":"https://doi.org/10.2139/ssrn.3544915","url":null,"abstract":"","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121892393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Problem of Deterring Extraterritorial White-Collar Crime","authors":"A. Spalding","doi":"10.31228/osf.io/ztgf4","DOIUrl":"https://doi.org/10.31228/osf.io/ztgf4","url":null,"abstract":"Recent reports of egregious labor practices in China and Bangladesh have called public attention to the potential harms of foreign direct investment (FDI) in developing countries. The best, or at least most obvious, tool for reducing destructive overseas business practices would seem to be the extraterritorial application of white-collar criminal law. 1 The ―holy grail‖ of contemporary criminal law is deterrence,2 and the deterrence literature is largely shaped by the paradigm of law and economics. Prominent within that literature is Polinsky and Shavell’s ―enforcement authority,‖ which seeks to maximize social utility through the efficient deterrence of crime.3 Guided by the principles of law and economics, the enforcement authority wields four enforcement tools: enforcement expenditures, the level of the fine, the length of imprisonment, and the standard for imposing liability. 4 By manipulating these variables, it can presumably achieve the optimal combination of minimizing crime while also minimizing public expense.5","PeriodicalId":334243,"journal":{"name":"Chapman Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131212223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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