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University of San Diego

San Diego Law Review

2007

Articles 1 - 30 of 45

Full-Text Articles in Law

The Right To Privacy Unveiled, Samuel C. Rickless Nov 2007

The Right To Privacy Unveiled, Samuel C. Rickless

San Diego Law Review

The purpose of this Article is to bring order to this theoretical chaos. In my view, none of these accounts of the right to privacy is accurate. As I will argue, we are better served by a completely different theoretical description of the relevant right. It is my hope that greater philosophical clarity in this area of ethics will lead to a more careful appreciation of the value of the right to privacy, as well as legislation and judicial reasoning that is more carefully crafted to protect against violations of the right. This Article is organized as follows: In Part …


Privacy Versus Security: Why Privacy Is Not An Absolute Value Or Right, Kenneth Einar Himma Nov 2007

Privacy Versus Security: Why Privacy Is Not An Absolute Value Or Right, Kenneth Einar Himma

San Diego Law Review

In this Article, I consider the scope of this right to informational privacy relative to our interests in security and argue, in particular, that the right to privacy must yield to these interests in the case of a direct conflict. I offer arguments from a number of different perspectives. I will, for example, begin with a case directly rooted in what I take to be ordinary case intuitions and then continue with an argument grounded in the distinction between intrinsic and instrumental value, which is thought to serve as a rough mark between what is important from a moral point …


Claims To Privacy And The Distributed Value View, Alan Rubel Nov 2007

Claims To Privacy And The Distributed Value View, Alan Rubel

San Diego Law Review

This Article is organized as follows. In Part II, I briefly explain my view of what privacy is - the particularized judgment account. I then turn to the question of privacy - value in Part III, where I examine several views prominent in the literature. In Part IV, I outline my view of privacy's value. I argue that, at its strongest, privacy has constitutive value, which is to say that privacy is a constituent part of intrinsically valuable states of affairs. However, in many cases, privacy's value is not morally weighty. Unlike other goods to which privacy is compared, I …


Intentionalism's Revival, James J. Brudney Nov 2007

Intentionalism's Revival, James J. Brudney

San Diego Law Review

The Article situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors' approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may …


Introduction To The 2007 Editors’ Symposium: Informational Privacy: Philosophical Foundations And Legal Implications, Larry Alexander Nov 2007

Introduction To The 2007 Editors’ Symposium: Informational Privacy: Philosophical Foundations And Legal Implications, Larry Alexander

San Diego Law Review

The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2007 Editors' Symposium of the San Diego Law Review. This year's theme is: "Informational Privacy: Philosophical Foundations and Legal Implications."


Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee Nov 2007

Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee

San Diego Law Review

The controversy over the Bush Administration's warrantless wiretapping program will not disappear any time soon. Legislators, policymakers, and academics should be thinking about whether and under what circumstances such surveillance should be illegal. A major factor in that decision is the moral status of such wiretapping. This essay, written for a symposium on moral rights to informational privacy, argues that two key determinants in the morality of warrantless wiretapping are (1) whether the subjects of the surveillance are known terrorists; and (2) whether the wiretapping is part of a pre-emptive surveillance program, or instead whether government operatives actually know of …


V.44-4, 2007 Masthead Nov 2007

V.44-4, 2007 Masthead

San Diego Law Review

No abstract provided.


What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodrigues Nov 2007

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodrigues

San Diego Law Review

How should judges interpret statutes? For some scholars and judges, interpreting statutes requires little more than a close examination of statutory language, with perhaps a dictionary and a few interpretive canons nearby. For others, statutory interpretation must be based upon an assessment of a statute's underlying purpose, an evaluation of society's current norms and values, or a normative objective, such as the "law's integrity." With such differences squarely framed in the literature, it is reasonable to ask whether anything of value can be added. We contend that there is.


Toward Informational Privacy Rights, Adam D. Moore Nov 2007

Toward Informational Privacy Rights, Adam D. Moore

San Diego Law Review

In this paper I will offer several arguments in support of the view that individuals have moral claims to control personal information. Coupled with rights to control access to one's body, capacities, and powers, or physical privacy rights, we will have taken important steps toward a general right to privacy. In Part I, a definition of privacy is offered along with an account of the value of privacy. Simply put, privacy - defined as control over access to locations and information - is necessary for human well-being. In Part II, an attempt to move beyond claims of value to claims …


Some Questions For The Barrier Theory, Alan Rubel Nov 2007

Some Questions For The Barrier Theory, Alan Rubel

San Diego Law Review

Having set out the basics, Rickless considers several questions one might pose for the Barrier Theory. For example, must the barrier be solid? No. Must the barrier be erected by, rather than merely used by, the rightholder? No. Must the barrier be morally permissible in the first instance? No. While Rickless's answers seem correct, I think that they raise some concerns about the Barrier Theory.


Separation, Risk, And The Necessity Of Privacy To Well-Being: A Comment On Adam Moore's Toward Informational Privacy Rights, Kenneth Einar Himma Nov 2007

Separation, Risk, And The Necessity Of Privacy To Well-Being: A Comment On Adam Moore's Toward Informational Privacy Rights, Kenneth Einar Himma

San Diego Law Review

In this Article, I want to raise doubts about certain of Moore's premises in his argument defending information privacy rights. As always and I say this as a continuing admirer of his skill as a philosopher, information theorist, and legal theorist his argument is well thought out and persuasively written. But, as we will see, there are serious problems with each major plank of his schema for justifying privacy rights.


"I'Ve Got Nothing To Hide" And Other Misunderstandings Of Privacy, Daniel J. Solove Nov 2007

"I'Ve Got Nothing To Hide" And Other Misunderstandings Of Privacy, Daniel J. Solove

San Diego Law Review

In this short Article, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide …


The Human Right To Privacy, James Griffin Nov 2007

The Human Right To Privacy, James Griffin

San Diego Law Review

To say much of interest about a particular human right, we have to know its content. So we have to know how to decide its content. That is where I shall start.


How To Understand Legislatures: A Comment On Boudreau, Lupia, Mccubbins, And Rodriguez, Larry Alexander Nov 2007

How To Understand Legislatures: A Comment On Boudreau, Lupia, Mccubbins, And Rodriguez, Larry Alexander

San Diego Law Review

Much has been written about legal interpretation, and I have serious disagreements with most of it. So it is quite refreshing to read an article on the topic that, from my perspective, gets the topic right from start to finish. As an added bonus, two of the authors are my former colleagues. My enthusiasm for the approach taken by Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter BLMR) has not proven fatal to my task of commenting on the article. I am not reduced to saying "Right on" and then signing off. There are issues to be flagged. Nonetheless, so much of …


Statutory Interpretation As A Parasitic Endeavor, Stephen F. Ross Nov 2007

Statutory Interpretation As A Parasitic Endeavor, Stephen F. Ross

San Diego Law Review

The principal theme of this essay is that statutory interpretation is a project that requires advocates and judges to utilize the insights of three discrete disciplines apart from law: communications and linguistics to understand the way that legislative drafters use words to communicate to others, either in text or in extratextual legislative material; political science to describe the way that legislators behave in enacting statutes; and political theory to provide a normative guide for courts interpreting statutes in a constitutional democracy. Judges, lawyers, and academics would find the process of interpretation more coherent if they transparently acknowledged when and how …


Lenders And Consumers Continue The Search For The Truth In Lending Under The Truth In Lending Act And Regulation Z, Elwin Griffith Aug 2007

Lenders And Consumers Continue The Search For The Truth In Lending Under The Truth In Lending Act And Regulation Z, Elwin Griffith

San Diego Law Review

The Truth in Lending Act (TILA) was passed by congress to make sure that when lending money the consumer was aware of all of the elements, including the existence of other lending companies. As a result of TILA, Regulation Z was promulgated by the Federal Reserve Board to enact the elements of TILA. However both TILA and Regulation Z has exceptions that lenders can try to meet the requirements for. The exceptions allow lenders to exclude certain charges from the finance charge which is composed of, or at least supposed to be composed of, any charge that you need to …


Introduction To The Third Criminal Procedure Discussion Forum, Russell L. Weaver Aug 2007

Introduction To The Third Criminal Procedure Discussion Forum, Russell L. Weaver

San Diego Law Review

The Third Criminal Procedure Discussion Forum was held at the University of Louisville's Brandeis School of Law on December 14, 2006. As with prior fora, the goal of this forum was to bring together a small group of prominent criminal procedure scholars to discuss matters of common interest. This year's forum focused on two topics: "confessions jurisprudence" and "the most underrated criminal procedure decision(s)."


Truth, Justice, And The American Dilemma, Robert Batey Aug 2007

Truth, Justice, And The American Dilemma, Robert Batey

San Diego Law Review

McCleskey v. Kemp is without doubt a memorable case. Professor David C. Baldus and his colleagues, Charles A. Pulaski and George Woodworth, had produced a detailed statistical study of the operation of the death penalty in Georgia showing, in the words of the Supreme Court, that "black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty." McCleskey used this study to challenge his capital sentence under both the Equal Protection and Cruel and Unusual Punishment Clauses. Like any statistical proof, the Baldus study had been challenged on methodological grounds. The Supreme Court …


Smith V. Hooey: Underrated But Unfulfilled, Leslie W. Abramson Aug 2007

Smith V. Hooey: Underrated But Unfulfilled, Leslie W. Abramson

San Diego Law Review

The Sixth Amendment right to a speedy trial applies to prosecutions in the federal courts and to state prosecutions through the Fourteenth Amendment Due Process Clause. This constitutional right is probably the least favorite of the Bill of Rights, because it would satisfy most defendants if the government never - promptly or otherwise - disposed of their pending charges. One group of persons, though, who may regard the right to a speedy trial as important are convicted defendants currently serving sentences, but who have pending charges brought against them by other states or the federal government. For them, denying the …


Keeping It Private, Maimon Schwarzschild Aug 2007

Keeping It Private, Maimon Schwarzschild

San Diego Law Review

Public law adjudication has grown dramatically in recent decades in many English-speaking countries. In the United States, and increasingly in other countries where it used to be rare for public questions to be decided in court, controversial questions of public policy are tried as constitutional or human rights issues and decided by court order. But in other areas of law - in everyday tort, contract, and property cases - court decisions are typically much less dramatic and seldom if ever announce controversial innovations in public policy. Yet in private law cases too there are implicit questions of social justice. In …


V.44-3, 2007 Masthead Aug 2007

V.44-3, 2007 Masthead

San Diego Law Review

No abstract provided.


The Supreme Court, Confessions, And Judicial Schizophrenia, Arnold H. Loewy Aug 2007

The Supreme Court, Confessions, And Judicial Schizophrenia, Arnold H. Loewy

San Diego Law Review

Schizophrenia literally means "split mind." Consequently, it should not be too surprising that the United States Supreme Court, which is a theoretically continuing body with nine ever-changing minds, would say things in one year that seem schizophrenic when contrasted with last year's jurisprudence. Unfortunately, many of the inconsistent statements remain good law, and the result largely depends on which doctrine the Court chooses to trot out. In this essay, four such statements and the extent that each should be taken will seriously be examined.


Interrogating Terrorists: From Miranda Warnings To "Enhanced Interrogation Techniques", Ronald J. Rychlak Aug 2007

Interrogating Terrorists: From Miranda Warnings To "Enhanced Interrogation Techniques", Ronald J. Rychlak

San Diego Law Review

An American citizen arrested within the United States would certainly have the right not to incriminate himself. A foreign national arrested outside of the U.S. would presumably not be protected. Other scenarios present more difficult issues. American courts, therefore, have to determine whether the Fifth Amendment's privilege against self-incrimination applies to non-American citizens, and whether an American police or military agent conducting an investigation abroad must provide some type of warnings before conducting an interrogation. The initial question would seem to be whether terrorist suspects are even entitled to the right protected by Miranda - the right not to incriminate …


Preventing False Confessions: Is Oickle Up To The Task?, Dale R. Ives Aug 2007

Preventing False Confessions: Is Oickle Up To The Task?, Dale R. Ives

San Diego Law Review

In R. v. Oickle, the Supreme Court of Canada expressly stated that the Canadian confessions rule "should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice." As a result, the Court reformulated the traditional confessions rule in an attempt to better protect against false confessions. An obvious question is whether the Court succeeded in attaining this goal. An examination of the reformulated rule indicates that, viewed in the abstract and measured against the current state of knowledge on false confessions, the modern rule does offer considerable protection to innocent persons, but it also has …


Privacy As Struggle, Andrew R. Taslitz Aug 2007

Privacy As Struggle, Andrew R. Taslitz

San Diego Law Review

The title of this short essay is "Privacy as Struggle," a title meant in part to capture the Court's requirement of superhuman individual efforts to attain secrecy, that is, totally veiling one's activities from the state's prying eyes as an essential prerequisite to the existence of privacy, all too often at the expense of human relationships, interpersonal trust, and political voice. I want, therefore, to paint an apocalyptic vision of the Court's Fourth Amendment privacy jurisprudence, as the reader will no doubt have noticed I have already done in connection with my reading of Hoffa. I want to do so …


Toward A More Robust Right To Counsel Of Choice, Janet C. Hoeffel Aug 2007

Toward A More Robust Right To Counsel Of Choice, Janet C. Hoeffel

San Diego Law Review

This Article takes its lead from the core principles of the right to counsel of choice expressed in Gonzalez-Lopez. These principles indicate that the right should include an indigent defendant's right to continue an attorney-client relationship established at some point in the past, and that, for both nonindigent and indigent defendants, the right to continue a trial with counsel of choice must be honored by trial courts unless it would be unethical or manifestly unjust to do so. This means that trial courts must almost always grant a continuance to accommodate that choice and could rarely deny such a request …


Justice Powell's Garden: The Ciraolo Dissent And Fourth Amendment Protection For Curtilage-Home Privacy, Catherine Hancock Aug 2007

Justice Powell's Garden: The Ciraolo Dissent And Fourth Amendment Protection For Curtilage-Home Privacy, Catherine Hancock

San Diego Law Review

It was not surprising that the majority opinion in Ciraolo provoked an impassioned dissent. The decision was unprecedented in sanctioning aerial surveillance as a police strategy for evading Fourth Amendment prohibitions of surveillance on the ground. The officers rented a plane because they did not have probable cause to obtain a warrant to enter and search the backyard, and because their attempts to peer into the yard were stymied by a tall fence. They could not crawl over the fence because that intrusion would violate the householder's protected expectation of privacy in his curtilage, the Fourth Amendment buffer zone of …


International Criminal Jurisdiction In The Twenty First Century: Rediscovering United States V. Bowman, Ellen S. Podgor, Daniel M. Filler Aug 2007

International Criminal Jurisdiction In The Twenty First Century: Rediscovering United States V. Bowman, Ellen S. Podgor, Daniel M. Filler

San Diego Law Review

In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - far broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing …


Striking A Balance In Unlawfully Obtained Confession Cases: United Kingdom Pragmatism Against Principle, Jenny Mcewan Aug 2007

Striking A Balance In Unlawfully Obtained Confession Cases: United Kingdom Pragmatism Against Principle, Jenny Mcewan

San Diego Law Review

In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing so, …


Miranda At Forty, Russell L. Weaver Aug 2007

Miranda At Forty, Russell L. Weaver

San Diego Law Review

In some respects, the Miranda decision was relatively uncontroversial because the Court did little more than require the police to inform suspects of their rights and prescribe procedures for the waiver of those rights. But Miranda's holding was not inevitable. In the Court's later decision in Schneckloth v. Bustamonte, the Court held that suspects can consent to searches of their persons or property even though they have not been informed that they have a Fourth Amendment right to refuse consent. A critic of Schneckloth might legitimately question how suspects can validly waive Fourth Amendment rights that they do not know …