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Articles 1 - 30 of 67
Full-Text Articles in Law
Motions 2007 Volume 43 Number 3, University Of San Diego School Of Law Student Bar Association
Motions 2007 Volume 43 Number 3, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Foreword, Christina Clemm
Foreword, Christina Clemm
San Diego International Law Journal
Regulation of global networks, human rights concerns, the effect of violence on children, and the regulatory authority of bodies like the WTO are also issues that no country can ignore. These topics in particular are highlighted in the 9th volume of the San Diego International Law Journal. However, like the subprime mortgage crisis, they are but a few of the important international issues facing the world.
Public International Law And The Wto: A Reckoning Of Legal Positivism And Neoliberalism, S. G. Sreejith
Public International Law And The Wto: A Reckoning Of Legal Positivism And Neoliberalism, S. G. Sreejith
San Diego International Law Journal
This Article proceeds in five parts. In part one, I review the scholarly skepticism as to how far international law is law in the "hard" sense and show that this skepticism has always permeated the discipline. In part two, I go on to examine what has prompted contemporary scholarship to credit the WTO with helping international law grow out of the "thin" normativity often attributed to it. The analysis suggests that certain features of legal positivism customarily associated with law in its strict sense, which were alleged to be lacking in international law, are found in the institutional apparatus of …
Japanese Prefectural Scapegoats In The Constitutional Landscape: Protecting Children From Violent Video Games In The Name Of Public Welfare, Susan Minamizono
Japanese Prefectural Scapegoats In The Constitutional Landscape: Protecting Children From Violent Video Games In The Name Of Public Welfare, Susan Minamizono
San Diego International Law Journal
Part I of this comment will examine the history and application of freedom of expression in Japanese case law and the evolution of the public welfare concept and its circumscribing effect on individual freedoms. Part II will explore the recent local regulatory efforts and the historical underpinnings for these laws that place restrictions on materials to children. Part III will compare the Japanese legislative endeavors with their American counterparts and highlight the reasons why United States laws will continue to be struck down by courts. Part IV will analyze the response of the video game industry to the onslaught of …
Seeking The Final Court Of Justice: The European Court Of Human Rights And Accountability For State Violence In Northern Ireland, Christopher K. Connolly
Seeking The Final Court Of Justice: The European Court Of Human Rights And Accountability For State Violence In Northern Ireland, Christopher K. Connolly
San Diego International Law Journal
This article examines the impact of the European Court's right to life jurisprudence on the issue of accountability for state violence in Northern Ireland. To date, the initiatives undertaken by the United Kingdom to comply with the European Court's rulings are largely unsatisfactory. Piecemeal institutional reforms aimed at preventing future breaches of Article 2 have failed to fully address the underlying concerns identified by the Court, and domestic right to life jurisprudence has placed significant limitations on the extent to which past violations of the right to life can be dealt with effectively in British courts. The United Kingdom's response …
Net Neutrality: An International Policy For The United States, Frederick W. Pfister
Net Neutrality: An International Policy For The United States, Frederick W. Pfister
San Diego International Law Journal
Consider this scenario: Alex and John still are avid video game players and play hours a day, each connecting from the same town through different ISPs. However, since it is a peak Internet traffic time, it may be difficult for them to play. While Alex has the "Diamond" package from his ISP that ensures he has guaranteed high-bandwidth connection, John's ISP does not offer anything other than regular residential service. John must compete with everyone else in his local area for bandwidth, including a few who constantly watch high-definition video-on-demand and subsequently constrain bandwidth for other users. Would it not …
The Right To Privacy Unveiled, Samuel C. Rickless
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
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
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
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
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
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 …
What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodrigues
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
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
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
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
"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
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
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
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 …
Motions 2007 Volume 43 Number 2, University Of San Diego School Of Law Student Bar Association
Motions 2007 Volume 43 Number 2, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Motions 2007 Volume 43 Number 1, University Of San Diego School Of Law Student Bar Association
Motions 2007 Volume 43 Number 1, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Lenders And Consumers Continue The Search For The Truth In Lending Under The Truth In Lending Act And Regulation Z, Elwin Griffith
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
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
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
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
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 …
The Supreme Court, Confessions, And Judicial Schizophrenia, Arnold H. Loewy
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.