Law Commons^™

Supporting Text And Data Analysis Across Campus From The Academic Library, Amy Kirchhoff, Hejin Shin Phd

Digital Initiatives Symposium

The ability to comprehend and communicate with text-based data is essential to future success in academics and employment, as evidenced in a recent survey from Bloomberg Research Services which shows that nearly 97% of survey respondents now use data analytics in their companies and 58% consider data and text mining a business analytics tool (https://www.sas.com/content/dam/SAS/bp_de/doc/studie/ba-st-the-current-state-of-business-analytics-2317022.pdf). This has fueled a substantial growth in text analysis research (involving the use of technology to analyze un- and semi-structured text data for valuable insights, trends, and patterns) across disciplines and a corresponding demand on academic libraries to support text analysis pedagogy and text analysis …

Revitalizing The Right, David Azerrad

The Journal of Contemporary Legal Issues

Debating the nature of conservatism may well be the favorite hobby of American conservatives. While the question will never be resolved to anyone’s satisfaction, it is a pleasant enough pastime to detract from the failures of the American conservative movement to conserve much anything of worth (unless you count the movement itself, in all its sinecurial grifting splendor, as something of worth).

V.24-1, 2023 Masthead

The Journal of Contemporary Legal Issues

No abstract provided.

A Bloodless, Crownless, Hydroponic Conservatism: America In The 21st Century, Rachel Lu

The Journal of Contemporary Legal Issues

Defining conservatism feels audacious. The mere attempt seems to place us in company with Lincoln, Kirk, Buckley, Hayek, Oakeshott, Scruton, Reagan and Thatcher, and many more illustrious personalities. One can hardly aspire to offer the definitive take; at best, we might hope to draw meaningful connections between a long-running conversation about conservatism, and the cultural or political struggles of our own time. That less-ambitious goal may still be very worthwhile, however. There is a reason why conservatives love to debate conservatism. It helps us to identify worthwhile goals, and remind ourselves why they matter. Looking at the political right today, …

Nature, Tradition, And Virtue: Restoring The Conservative Good Life, Bruce P. Frohnen

The Journal of Contemporary Legal Issues

Conservatism, always a contested term, has become the subject of major confusion in the post-Cold War era. As it emerged after the Second World War in the writings of Russell Kirk and the pages of William F. Buckley’s National Review, the conservative movement already was more coalition than single program or philosophy. The notion of conservative “fusionism” was a convenient but superficial means of holding together libertarians, politically under-defined anti-communists, and traditional conservatives in pursuit of their common public policy goals. As the Cold War wound down and the Republican Party devolved into neoliberal globalism, the movement dissolved into mutually …

Traditionalism Rising, Marc O. Degirolami

The Journal of Contemporary Legal Issues

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

Return To Deliberation, Richard M. Reinsch Ii

The Journal of Contemporary Legal Issues

American conservatism finds itself facing an array of difficult if not intractable challenges and problems. Progressive elements dictate revolutionary claims about gender, race, economics, policing, alongside their dismissal of American history as just racism, sexism, and homophobia. Moreover, progressives sit atop the commanding heights of culture, education, social media, influential corporations, and the federal bureaucracy. Conservatives still win elections about half the time, but face incredible problems in governing because of this political, cultural, and educational imbalance of power.

The Forgotten Path Of Liberal Conservatism: What Yoram Hazony Ignores, Daniel J. Mahoney

The Journal of Contemporary Legal Issues

Today, in academic and intellectuals circles it is a besieged minority that affirms that the freest, most prosperous, most self-critical societies in the history of the world have been bequeathed a patrimony worth preserving. We have lost a meaningful and robust sense of what constitutes the West as the West (in fact, the term itself has no real resonance with the younger generations). The “Other” in faraway places, to use a fashionable abstraction, is beyond criticism since cultural and moral criticism are in those cases de rigueur; but the appropriate response to the faults of rule-of-law societies in the …

Conservatives Divide On Matters Of Principle, Maimon Schwarzschild

The Journal of Contemporary Legal Issues

The conservative phenomenon in the United States in the years since the Second World War has entailed—I hesitate to say “embraced”—a variety of diverging views, preoccupations, and commitments, some of them at least in tension with, if not actually opposed to, one another. This has been true for conservative writers, thinkers, and publicists; it has also been true for America’s conservative voting constituencies. For many decades, conservatives were often said to be subdivided between traditionalists and libertarians. There were (and are) diverging tendencies even among the traditionalists: these tendencies can be religious or secular, with styles and emphases that diverge …

The Social Clerisy: Conservative Political Philosophy As A Philosophy Of Pluralism And The Social Group, Luke C. Sheahan

The Journal of Contemporary Legal Issues

Conservative political philosophers should be counted among, as Nisbet writes, “those thinkers who have resisted the appeal of the One, the unitary and monistic, and have found not merely reality but freedom and justice and equity to lie in plurality.” They should take as their starting point Nisbet’s tradition of the plural community. Given our place in history, following the increasing alienation and decline of social groups chronicled by Putnam and others, conservatives should feel free to pillage the ideas of pluralist thinkers outside the conservative tradition. Nisbet admits repeatedly throughout the decades of his long career that there seems …

Progressivism, Conservatism, And Democracy, William Voegeli

The Journal of Contemporary Legal Issues

“Conserve” is a transitive verb, one that conveys little unless followed by a direct object. The meaning of conservatism then, depends on what conservatives want to conserve: why it’s valuable, therefore meriting conservation; and why it’s vulnerable, therefore requiring conservation.

The answer to that question will vary from one time and place to another. During the Cold War, American conservatives bristled when newspapers referred to the most inflexible, doctrinaire Soviet leaders as the Kremlin’s “conservatives.” But this journalistic shorthand wasn’t absurd: it’s hard to identify a conservative essence discernible in all political settings. A skeptical, wary attitude regarding change …

The Use And Abuse Of Tradition: A Comment On Degirolami’S Traditionalism Rising, Andrew Koppelman

The Journal of Contemporary Legal Issues

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method.”

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

Contemporary Conservative Thought: The View From San Diego, William A. Galston

The Journal of Contemporary Legal Issues

At the conference on “Modern Conservative Political Philosophy” convened at the University of San Diego on September 16–17, 2022, eleven authors presented papers. They fall into four broad categories.

Three of the papers offer broad defenses of conservatism as it has been theorized and practiced in the United States since the 1950s. William Voegeli observes—accurately—that “by following their own premises, an increasingly postmodern Left and an increasingly premodern Right have ended up questioning the worth and feasibility of republican self-government.” This leaves the beleaguered Center, long the common ground between traditional liberals and traditional conservatives. According to Voegeli, this “increasingly …

On Preserving A Political Community In Revolutionary Times, Scott Yenor

The Journal of Contemporary Legal Issues

Among the hardest things to do in politics is to understand the current situation. Partisan loyalties cloud perspective. Political actors make overwrought charges in order to rile up their partisans. Things that seem important often are not, while small changes can lead to political revolutions. Revolutions often come without countries or political communities knowing, until it is too late.

Conservatism, Ideology, Skepticism, Brandon Turner

The Journal of Contemporary Legal Issues

The occasion for this essay concerns the prospects of modern conservative political philosophy; more directly, it calls for the provision of “a systematic and comprehensive account of conservatism.” Given our present moment, at which the political parties and institutions of the political right seem increasingly unmoored from any philosophical anchor, such an occasion appears altogether appropriate. Yet there is good reason to think that accounts of conservatism will not be systematic in the way desired and will in fact tend to rule out entirely systematic approaches—at least according to the commonplace understanding of “systematic”—to government or political philosophy. The belief—often …

Meanings, Speech Acts, And Legal Contents Produced By Plural Lawmaking Bodies, Scott Soames

The Journal of Contemporary Legal Issues

Language is both our most powerful cognitive tool and our most basic social institution, without which neither law, government, nor science would be possible. Because it is so central to nearly everything we do, its familiarity tempts us to overestimate how much we understand about the way it functions in different domains. My task is to illuminate (i) how to extract legal content from linguistic acts of lawmakers in the United States, and (ii) how this linguistically expressed content is sometimes modified by legal interpretation, when law is applied to particular cases. Although (i-ii) are grounded in facts about ordinary …

Deontology In Graphs: An Elucidation, Alec Walen

The Journal of Contemporary Legal Issues

Representing conceptual relationships in graphic form can be clarifying. The exercise can make the graph composer and the graph reader ask questions they otherwise might not have asked. Of course, graphs also require the composer to make choices: what do you put in, what do you merely approximate, what do you try to make precise, what might look more precise than you mean to be? These choices need to be explained and defended to make the graphs meaningful representational tools. But if explained and defended, graphs can provide a distinctively helpful tool, especially to those like moral philosophers who tend …

West Virginia’S “Major Questions” And The Silent Disappearance Of The Chevron Doctrine, Hunter W. Collins

San Diego Law Review

This Note analyzes the Court’s determination that an administrative agency’s action must be explicitly authorized under “clear congressional authorization” when it involves great “economic and political significance.” Part II of this Note provides a brief overview of the CAA and how the act has been used to cut GHG pollution. Part III examines the EPA’s focus on the power sector in particular, as well as the paths that differing presidential administrations have taken to provide a stable energy grid. Part IV discusses the litigation between West Virginia and the EPA, which resulted in the controversial 6–3 decision in the Supreme …

V.60-4, 2023 Masthead

San Diego Law Review

No abstract provided.

Protecting The Promise To The Families Of Tuskegee: Banning The Use Of Persuasive Ai In Obtaining Informed Consent For Commercial Drug Trials, Jennifer S. Bard

San Diego Law Review

This is the first article to call for a ban on the use of AI technology designed to influence human decision-making, “Persuasive AI,” for the purpose of recruiting or enrolling human participants in drug trials sponsored by commercial entities. It does so from a perspective of precaution, not fear. Advances in Artificial Technology that can assist human decision-making have tremendous potential for good. It makes the case for doing so based on both the substantial risk of harm to the decision-making process and the ineffectiveness of intermediate regulatory measures. This Article looks directly at Persuasive AI, a type of AI …

Growing, Growing, Gone: How Dobbs Fundamentally Altered The Way Reproductive Freedom, Private And Professional Liability, And Constitutional Rights Will Be Analyzed In A Post–Roe America, Amanda J. Sharp

San Diego Law Review

This Note examines the Dobbs decision and its implications. Part II analyzes the history of abortion rights in the United States, including the role Dobbs played in overturning precedential cases. Part III describes the legal implications of Dobbs, including the status of abortion rights and how this decision altered the state of women’s healthcare. It then addresses Dobbs’ indirect implications, including its potential impacts on the foster care system, implied liability in healthcare professions, data privacy laws, and the employer-employee relationship. Part IV briefly proposes next steps that could be taken and concludes with a call to action.

Turning Fake Data Into Fake News: Ai Training Set As A Trojan Horse Of Misinformation, Bill Tomlinson, Donald J. Patterson, Andrew W. Torrance

San Diego Law Review

Generative artificial intelligence (AI) offers tremendous benefits to society. However, these benefits must be carefully weighed against the societal damage AI can also cause. Dangers posed by inaccurate training sets have been raised by many authors. These include racial discrimination, sexual bias, and other pernicious forms of misinformation. One remedy to such problems is to ensure that training sets used to teach AI models are correct and that the data upon which they rely are accurate. An assumption behind this correction is that data inaccuracies are inadvertent mistakes. However, a darker possibility exists: the deliberate seeding of training sets with …

V.60-3, 2023 Masthead

San Diego Law Review

No abstract provided.

California Assembly Bill 3121’S Claim For Black Redress: The Case For A State Truth And Reconciliation Commission And Housing Vouchers, Jessica Robertson

San Diego Law Review

On September 30, 2020, Assembly Bill 3121 (AB 3121) established the Task Force to Study and Develop Reparation Proposals for African Americans (Task Force). AB 3121 charges the Task Force with three duties: (1) identify and synthesize evidentiary documentation of “[t]he institution of slavery . . . that existed within the United States and the colonies that became the United States from 1619 to 1865, inclusive”; (2) recommend ways to educate the public of its findings; and (3) recommend “appropriate remedies in consideration of the task force’s findings on the matters described in this section.” Per these duties, the Task …

Healthcare Reparations In California, Chelsea J. Gaudet

San Diego Law Review

The Reparations Task Force has recommended several key areas in which the state of California can offer reparations for its systemic abuse of African Americans. The Interim Report issued by the Task Force highlights the discrepancy in health outcomes for White Californians versus Black Californians and attributes the difference not just to inequitable access, but also to a special compounding effect of physical and mental stress suffered solely by Black Californians as a result of systemic and personal environmental racial discrimination.

This Essay discusses the unique aspects of “weathering” and the insidious effect of racial bias in research meant to …

Affirming And Supporting Black Women’S Lactation Agency As Redress, Dorothy Couchman

San Diego Law Review

This Article opens with Truth baring her breasts for four reasons. First, for many women like Truth who survived enslavement, lactation was a specifically gendered and racialized site of atrocity. Under chattel slavery in the United States, enslaved women were prevented from breastfeeding their infants as needed, compelled to wean their children far too early at the demands of their enslavers, or made to wet-nurse their enslavers’ White children in place of their own. This lactational coercion was part of a larger atrocity of reproductive abuse perpetuated against enslaved women.

Second, as Truth notes, enslaved women’s children were harmed when …

Transformative Dynamics: Reframing The Role Of Reparations In Transforming Social Order, Emily J. Kawahara

San Diego Law Review

According to Kathryn Sikkink, a revolution of human rights advocacy in tandem with heightened levels of accountability for human rights abuses has led to a “justice cascade,” where it is now expected that human rights violators will be held criminally accountable for transgressions. This normative shift of prosecuting individual perpetrators for human rights violations has also affected the larger picture of justice: human rights violations do not live in a silo and often occur against a backdrop of much-needed institutional reform. This Article considers the relationship between transitional justice, development programs, and social services, specifically using reparations as an example …

Symposium Introduction: Walking With Destiny, Roy L. Brooks

San Diego Law Review

During the Enlightenment, the poet Robert Burns lamented, “Man’s inhumanity to man [m]akes countless thousands mourn.” Burns was looking back over centuries of human injustices—atrocities—as the empirical basis for his mournful reflection. But even now, long after the Enlightenment, we have not been able to curb our proclivity for committing atrocities. What we have been able to do after all these centuries, however, is enlarge the human capacity for redressing—repairing—the damage wrought by our atrocities. As atrocities do not appear to be ending, redress has become our destiny.

California is attempting to walk with this destiny. Our most populous state …

Appendix, California Task Force

San Diego Law Review

No abstract provided.

No Apology Until Abolition: Redressing The Ongoing Atrocity Of Slavery, Brandee Mcgee

San Diego Law Review

There are currently more Black adults under correctional control than there were enslaved at the height of slavery. Despite Black Americans making up only 12% of the domestic population, states imprison them at more than five times the rate of White Americans. In California, the ratio is even higher: the “Black/‌white disparity [is] larger than 9:1.” Although many White Americans are also imprisoned, Michelle Alexander in The New Jim Crow argues that these White prisoners are “collateral damage” to mask a racialized prison-industrial complex (PIC)—with mass incarceration as the main feature.

In 1865, after decades of activism by the abolitionist …