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Full-Text Articles in Law

I Share, Therefore It's Mine, Donald J. Kochan Apr 2017

I Share, Therefore It's Mine, Donald J. Kochan

Donald J. Kochan

Uniquely interconnecting lessons from law, psychology, and economics, this article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to the sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals, then, is that the property system is well suited to create recognizable and enforceable ownership norms that include the rights ...


Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan Dec 2015

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.

This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple ...


A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald Kochan Dec 2014

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald Kochan

Donald J. Kochan

Our 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 ...


Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan Dec 2014

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist ...


The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan Dec 2013

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation. As noble as virtuous behavior, virtuous ...


Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan Dec 2013

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests other ...


"Thinking" In A Deweyan Perspective: The Law School Exam As A Case Study For Thinking In Lawyering, Donald J. Kochan Apr 2012

"Thinking" In A Deweyan Perspective: The Law School Exam As A Case Study For Thinking In Lawyering, Donald J. Kochan

Donald J. Kochan

As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam ...


You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan Mar 2012

You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan

Donald J. Kochan

With nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful ...


Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan Aug 2011

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must ...


Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan Jul 2011

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go ...


"Learning" Research And Legal Education: A Brief Overview And Selected Bibliographical Survey, Donald Kochan Mar 2011

"Learning" Research And Legal Education: A Brief Overview And Selected Bibliographical Survey, Donald Kochan

Donald J. Kochan

At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing. This research overview aims to aid the legal educator seeking to learn about learning and access tools for self-improvement. It also provides some preliminary assistance ...


On Equality: The Anti-Interference Principle, Donald J. Kochan Dec 2010

On Equality: The Anti-Interference Principle, Donald J. Kochan

Donald J. Kochan

This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues ...


Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan Dec 2009

Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan

Donald J. Kochan

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis ...


Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan Dec 2008

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials ...


Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow Dec 2007

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States ...


The Soft Power And Persuasion Of Translations In The War On Terror: Words And Wisdom In The Transformation Of Legal Systems, Donald J. Kochan Dec 2007

The Soft Power And Persuasion Of Translations In The War On Terror: Words And Wisdom In The Transformation Of Legal Systems, Donald J. Kochan

Donald J. Kochan

The power of words is the power of persuasion. The exportation of the foundational legal principles that helped form the American republic can serve as instrumental "soft power" tools in the war on terror. Efforts promoting projects like the Arabic Book Program are important vehicles to cross-cultural and cross-lingual international relations. This Article argues that an arsenal of words can be as, or more, powerful than an arsenal of artillery. The West has much to offer, but the rest of the world needs to be able to read it without getting lost in translation. Providing linguistic access to the documents ...


Symposium Introduction -- Miranda At 40: Applications In A Post-Enron, Post-9/11 World, Donald J. Kochan Dec 2006

Symposium Introduction -- Miranda At 40: Applications In A Post-Enron, Post-9/11 World, Donald J. Kochan

Donald J. Kochan

The groundbreaking case of Miranda v. Arizona raise[d] questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. This Introduction to the 2007 Chapman Law Review Symposium summarizes the contemporary examination of Miranda's influence, past and present, along with the continuing debate today. The experiences and precedents that have evolved in the past 40 years helps to explore the evolution of the criminal law and procedural dictates set forth in Miranda. Complications with custodial interrogation - and the impulses and incentives ...


Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald Kochan Dec 2005

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald Kochan

Donald J. Kochan

From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of “respect” has always been understood as important in human interaction and human agreements. The concept of mutual understanding and obligation pervades human interaction, and, for purposes of this Article, international relations. Almost all basic principles in English, United States, and other country’s laws that value human and individual rights have based, over time, the development of their laws on the philosophical principle of respect. So much of common and statutory law is designed to enforce respect for others. The principle question ...


Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan Dec 2005

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent ...


The Blogosphere And The New Pamphleteers, Donald J. Kochan Dec 2005

The Blogosphere And The New Pamphleteers, Donald J. Kochan

Donald J. Kochan

The future of the free dissemination of information lies in the blog, some may say. The internet has entirely transformed how we receive and consume information. It’s the newest incarnation of information dissemination. From the insights of Alexis de Tocqueville, “Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed only by the reciprocal influence of men upon one another.” Bloggers are a powerful force in the distribution of information and ideas and the creation of communities of conversation. Throughout history, the dissemination of information, news, opinions, and ideas has continuously transformed. In the ...


The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan Dec 2004

The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan

Donald J. Kochan

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article’s case study is particularly relevant today, examining just how far Congress can go to limit ...


No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan Dec 2004

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from some ...


The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan Dec 2003

The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan

Donald J. Kochan

Increasingly, United States courts are recognizing various treaties, as well as declarations, proclamations, conventions, resolutions, programmes, protocols, and similar forms of inter- or multi-national “legislation” as evidence of a body of “customary international law” enforceable in domestic courts, particularly in the area of tort liability. These “legislative” documents, which this Article refers to as customary international law outputs, are seen by some courts as evidence of jus cogens norms that bind not only nations and state actors, but also private individuals. The most obvious evidence of this trend is in the proliferation of lawsuits against corporations with ties to the ...


State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan Dec 2002

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying ...


"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan Dec 1997

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it ...


Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan Dec 1997

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a ...


Pages Per Term In The United States Reports And Converting Supreme Court Citations To Term Announced: A Statistical Research Tool, Donald J. Kochan Dec 1997

Pages Per Term In The United States Reports And Converting Supreme Court Citations To Term Announced: A Statistical Research Tool, Donald J. Kochan

Donald J. Kochan

This short article presents a valuable statistical research tool for those involved in analysis of U.S. Supreme Court opinions. Researchers are made available the data regarding the number of pages that the Supreme Court has written each term and provides an easier basis for identifying this page count with the term announced, which is not otherwise immediately evident from the volume number of the U.S. Reports.