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Full-Text Articles in Law
Motions 2006 Volume 42 Number 3, University Of San Diego School Of Law Student Bar Association
Motions 2006 Volume 42 Number 3, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Foreword, Shanish M. Aloor
Foreword, Shanish M. Aloor
San Diego International Law Journal
The articles appearing in Volume 8 of the San Diego International Law Journal seek to offer insight and understanding into the international community. The first two articles examine the complexities involved in litigating international causes of action. Philip Moreman assesses the use of private rights of action before an international forum to enforce international laws. The article compares private rights of action with regulatory enforcement mechanisms to evaluate the respective costs and benefits. Yann-Huei Song examines the prospect of judicial intervention in fishery disputes involving fishing entities in Taiwan. The issue is complex because Taiwan is a not a member …
International Private Rights Of Action: A Cost-Benefit Framework, Philip M. Moremen
International Private Rights Of Action: A Cost-Benefit Framework, Philip M. Moremen
San Diego International Law Journal
This Article seeks to chart a different course, by developing and applying an analytical cost-benefit framework, for assessing the costs and benefits of PRAs to enforce international law before an international forum. This framework is drawn from various literatures. For example, there is much to be learned about the potential benefits and costs of PRAs in the international setting from the rich literature comparing domestic PRAs with domestic regulation in the American context. More broadly, the article employs a comparative institutional approach, using a comparison between PRAs and regulatory enforcement mechanisms to shed light on their respective costs and benefits. …
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
San Diego International Law Journal
This Essay aims to examine some of the common elements of law and economics and the Brisker method that have contributed to their success as intellectual movements. Toward that end, the Essay compares the founding principles of these movements, exploring similarities in their essential characteristics. Part I presents and analyzes representative examples of the conceptual approach underlying each of these methods. Drawing on these and other examples of each method, Part II observes that the success of the methods stems in part from their common reliance on historical antecedents as well as their emphasis on conceptual frameworks broadly applicable within …
The International Tribunal For The Law Of The Sea And The Possibility Of Judicial Settlement Of Disputes Involving The Fishing Entity Of Taiwan - Taking Ccsbt As An Example, Yann-Huei Song
San Diego International Law Journal
The main purpose of this paper is to assess the possibility of judicial settlement of fishery disputes involving the fishing entity of Taiwan and examine the legal questions regarding jurisdiction over the disputes. This analysis is based on the articles related to dispute settlement that are provided in the SBT Convention, the ITLOS Statute and the international law of the sea and the judicial practice of the ITLOS and other relevant arbitration courts in the Southern Bluefin Tuna case. Following this introductory section, Section II describes the establishment of the CCSBT and the selection and application of the methods of …
Linking Global Warming To Inuit Human Rights, Marguerite E. Middaugh
Linking Global Warming To Inuit Human Rights, Marguerite E. Middaugh
San Diego International Law Journal
Under international law, the United States government has violated the Inuit's human rights by failing to take action against climate change. The Inter-American Commission on Human Rights should find that the allegations of human rights violations by the Inuit are justified and rule in their favor. This Article first explores the impacts of climate change on the Inuit and each of the Inuit's basic human rights, which are implicated by the environmental changes. Next, the role and responsibility of the U.S. with respect to climate change is examined. This section discusses the current attitude and actions of the U.S. government, …
Vat? A Look Inside Canada's Experience With The Goods And Services Tax, Brandon A. Ketterman
Vat? A Look Inside Canada's Experience With The Goods And Services Tax, Brandon A. Ketterman
San Diego International Law Journal
Consumption taxes have been and continue to be utilized as a staple revenue producer within systems of taxation. The value-added tax (VAT) is one form of consumption tax that has grown in popularity among nations over the last several decades. In fact, after the passage of a goods and services tax (one type of VAT) in Australia in 2000, the United States now stands alone as the only remaining OECD nation, among its 30 members, without some form of a value-added tax on consumption. As the massive topic of tax reform continually appears at the forefront of the political landscape, …
Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu
San Diego International Law Journal
These developments and mutual correlating interests underscore the rising trend in the number of international co-productions and cinematographic co-operations with India. Still, the practice of movie making in India differs in many ways from industry structures in the U.S. or Germany, which shall be analyzed as potential co-production partners. Contractual relations, industry regulations, involved parties, and the legal rules are so distinct, that a comparative view from a producer's perspective shall bring into light the frameworks and copyright issues of international film co-productions involving India.
U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White
U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White
San Diego International Law Journal
Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …
Reflections On Discrimination, Alan Wertheimer
Reflections On Discrimination, Alan Wertheimer
San Diego Law Review
In the background are two claims that I want to put on the table. First, although it may be wrong for people to engage in a particular form of discrimination, it does not follow that the government should seek to prevent that discrimination. Second, although it may not be wrong for people to engage in a particular form of discrimination, it does not follow that it would be wrong for the government to seek to prevent that discrimination or to mitigate its effects. The wrongness of individual behavior is obviously related to the justifiability of state action, but the correlation …
In Re Blair Misses The Mark: An Alternative Interpretation Of The Bapcpa's Homestead Exemption, Shaun Mulreed
In Re Blair Misses The Mark: An Alternative Interpretation Of The Bapcpa's Homestead Exemption, Shaun Mulreed
San Diego Law Review
Bankruptcy law is wrought with compelling policy tensions, which legislators, judges, and academics must constantly balance. Bankruptcy law seeks to foster a fresh start and promote the rehabilitation of distressed debtors discharged from bankruptcy, while simultaneously ensuring that creditors receive repayment of debts owed to them by debtors. When bankruptcy law focuses too heavily on paternalistic goals providing a fresh start to debtors and fostering debtor rehabilitation both creditors and consumers suffer financially. Every dollar that remains with the debtor in furtherance of a fresh start is a dollar removed from the bankruptcy estate, and thus, a dollar that cannot …
Is The Privilege Of Private Discrimination An Artifact Of An Icon?, Donald A. Dripps
Is The Privilege Of Private Discrimination An Artifact Of An Icon?, Donald A. Dripps
San Diego Law Review
Most of what Professor Zwolinski says about the three plausible grounds for private discrimination's privileged position seems to me persuasive. I do, however, offer three observations about the prospects of justifying the prevailing distinction. First, as a methodological matter, there are many settled rules and institutions that are, from the standpoint of moral theory, not quite justified by any single normative theory. Second, an attempt to redistribute the goods now distributed by persons exercising the privilege of private discrimination is normatively problematic. Third, the privilege for private discrimination indeed tends to track a widely-felt sense that autonomy has special value …
Defining The Antidiscrimination Norm To Defend It, Mark Kelman
Defining The Antidiscrimination Norm To Defend It, Mark Kelman
San Diego Law Review
We may mean very different things when we say that an actor (the putative defendant in a lawsuit designed to alter the behavior in which he would engage but-for legal intervention) "discriminates" against another person (the suit's putative plaintiff). Recognizing this difference is helpful because it demonstrates that we should be extremely clear in using a term that does not have a single, uncontested meaning. More importantly, it reveals why we have certain norms against private discrimination, particularly in the employment market and a subset of markets in which customers purchase goods and services.
Sameness, Subordination, And Perfectionism: Toward A More Complete Theory Of Employment Discrimination Law, Kimberly A. Yuracko
Sameness, Subordination, And Perfectionism: Toward A More Complete Theory Of Employment Discrimination Law, Kimberly A. Yuracko
San Diego Law Review
This Article focuses on two muddled and contested areas of sex discrimination case law - the first deals with sexuality and the second with gender nonconformity in the workplace. Both are areas in which courts, at times, impose significant accommodationist demands on employers in the name of Title VII's antidiscrimination mandate. Section II addresses cases in which employers attempt to discriminate on the basis of sex in order to protect customers' personal or sexual privacy or to provide customers with a particular kind of sexual titillation. As a general matter, courts permit discrimination in the first type of case - …
Left Libertarianism: What's In It For Me?, H. E. Baber
Left Libertarianism: What's In It For Me?, H. E. Baber
San Diego Law Review
Left libertarianism cannot effectively promote equal opportunity for well-being. Neither direct distributions from the rent fund nor financial incentives for firms will significantly reduce gross, ongoing discrimination which locks most women into a narrow range of boring, dead-end, pink collar drudge jobs and puts minorities at a disadvantage in hiring, housing, and access to credit. Left libertarianism: What's in it for me? Not much.
Discriminating Shoppers Beware, Dana K. Nelkin
Discriminating Shoppers Beware, Dana K. Nelkin
San Diego Law Review
Such a theory suggests that we need to answer the following question in judging the moral permissibility of discriminatory shopping: Is this act of discriminatory shopping likely to undermine the public equality of our society? To answer this question in turn requires that we check two ways in which public equality could be undermined: first, by people interpreting our actions as sending a message of social inferiority and internalized shame; and second, by exacerbating and amplifying preexisting relationships of injustice.
Reflections On Equality, Adjudication, And The Regulation Of Sexuality At Work: A Response To Kim Yuracko, Orly Lobel
Reflections On Equality, Adjudication, And The Regulation Of Sexuality At Work: A Response To Kim Yuracko, Orly Lobel
San Diego Law Review
I make three observations on Yuracko's thesis to explain these ideas. First, in Part II, I argue that it is possible to explain the case law distinctions between various categories of BFOQ claims within the liberal model of antidiscrimination. Specifically, I turn to a more robust analysis of the antisubordination paradigm than Yuracko describes in her paper. I argue that we should consider the dangers of under-inclusion in one sector as the result of structural inequalities across the workforce. Because of the need to take a more macro approach in addressing the effects of discrimination on the market at large, …
Introduction, Larry Alexander
Introduction, Larry Alexander
San Diego Law Review
The outstanding collection of articles and comments thereon that follows this Introduction constitute the 2006 Editors' Symposium of the San Diego Law Review. The theme for this symposium is: "The Rights and Wrongs of Discrimination."
What Is Wrongful Discrimination?, Richard J. Arneson
What Is Wrongful Discrimination?, Richard J. Arneson
San Diego Law Review
Legal prohibition of some types of discriminatory conduct may be morally acceptable even though the conduct being prohibited would not be immoral in the absence of legal prohibition. Consider Thomas Schelling's analysis of patterns of racial segregation in residential housing. If one sees a sharply segregated housing segregation pattern (for example, African-Americans living next to African-Americans, whites living next to whites, and African-Americans living next to whites only at the neighborhoods - edges) even though there is no legal requirement that forces this result, one might suppose that what explains the segregation is a strong desire of almost all members …
Justice For Large Earlobes! A Comment On Richard Arneson's "What Is Wrongful Discrimination?", Andrew Koppelman
Justice For Large Earlobes! A Comment On Richard Arneson's "What Is Wrongful Discrimination?", Andrew Koppelman
San Diego Law Review
At different points in his paper, Professor Arneson offers two inconsistent descriptions of what his paper tries to accomplish. The first is to answer his title question. The second is to answer that question within a deontological morality that holds, contrary to act consequentialism, that what is morally right and wrong ... is fixed by ... moral constraints [which] mainly take the form of moral rights of others that are correlative with moral obligations that one must not violate these rights. In a footnote, Professor Arneson explains that this assumed moral framework is not the one I would ultimately endorse. …
Private Discrimination: A Prioritarian, Desert-Accommodating Account, Kasper Lippert-Rasmussen
Private Discrimination: A Prioritarian, Desert-Accommodating Account, Kasper Lippert-Rasmussen
San Diego Law Review
Most of us would consider a state's discrimination against its citizens-say, by refusing to hire them on account of their sex, race, religion, or ethnicity-clearly unjust, something in urgent need of rectification. Yet we often take a less censorious view of discriminatory acts by private individuals who choose not to share their neighborhood with, associate with, trade with, work with, befriend, marry, or be buried in the same graveyards as people of a different sex, race, religion, or ethnicity. On reflection, this asymmetry is puzzling. It cannot be explained by saying that state discrimination has graver consequences involving more people …
Explanation, Vindication, And The Role Of Normative Theory In Legal Scholarship, Connie S. Rosati
Explanation, Vindication, And The Role Of Normative Theory In Legal Scholarship, Connie S. Rosati
San Diego Law Review
I find Yuracko's inquiry quite intriguing, but I have doubts about the central thesis. My aim, in the discussion that follows, is to press Yuracko on two fronts, one methodological, the other substantive. As concerns substance, I shall say a bit as this commentary progresses about why Yuracko would need much more support to make good on her claim that an implicit perfectionism explains decisional antidiscrimination law. My chief interest, however, lies with certain questions as to what methodology she means to follow in her efforts to develop a more complete theory of employment discrimination law. Yuracko's approach is one …
Left Libertarianism And Private Discrimination, Peter Vallentyne
Left Libertarianism And Private Discrimination, Peter Vallentyne
San Diego Law Review
Left-libertarianism, like the more familiar right-libertarianism, holds that agents initially fully own themselves. Unlike right-libertarianism, however, it views natural resources as belonging to everyone in some egalitarian manner. Left-libertarianism is thus a form of liberal egalitarianism in that it recognizes both liberty rights and equality rights. In this Article, I shall lay out the reasons why (1) left libertarianism holds that (a) private discrimination is not intrinsically unjust and (b) it is intrinsically unjust for the state to prohibit private discrimination; and (2) that, nonetheless, a plausible version of left libertarianism holds that it is unjust for the state, and …
The Discriminating Shopper, Michael Blake
The Discriminating Shopper, Michael Blake
San Diego Law Review
This argument proceeds in two parts. Part I attempts to show that there is something special about discriminatory shopping, such that we ought to understand it prior to deriving an overall theory of employment discrimination. Part II then proceeds to analyze the political morality of discriminatory shopping and offers an account of when and how liberalism morally prohibits such discrimination. Part III concludes that such private discrimination is not always contrary to the egalitarian guarantees of liberalism; while there are some cases in which such practices run counter to liberalism's egalitarian guarantees, not all cases of discriminatory shopping have this …
Why Not Regulate Private Discrimination?, Matt Zwolinski
Why Not Regulate Private Discrimination?, Matt Zwolinski
San Diego Law Review
In this Article I examine the disparity between attitudes toward regulating private discrimination and those concerning the regulation of what I will call "commercial" discrimination. My hope is to find a theory that can simultaneously explain these divergent attitudes by providing an account that fits the various aspects of our legal practices and our attitudes toward them, and justify those practices by providing an account that makes the divergence attractive from a moral point of view. I focus on an explanation of the disparity that is grounded in three different sorts of considerations: differences in our epistemological access to private …
Motions 2006 Volume 42 Number 2, University Of San Diego School Of Law Student Bar Association
Motions 2006 Volume 42 Number 2, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Conversations In Legal Education: Stephen Hartwell, September 20, 2006, Stephen Hartwell
Conversations In Legal Education: Stephen Hartwell, September 20, 2006, Stephen Hartwell
Conversations in Legal Education
No abstract provided.
Conversations In Legal Education: Stephen Hartwell, September 7, 2006, Stephen Hartwell
Conversations In Legal Education: Stephen Hartwell, September 7, 2006, Stephen Hartwell
Conversations in Legal Education
No abstract provided.
Conversations In Legal Education: Laura Berend, September 6, 2006, Laura Berend
Conversations In Legal Education: Laura Berend, September 6, 2006, Laura Berend
Conversations in Legal Education
No abstract provided.