Law Commons^™

Motions 2015 Volume 52 Number 4, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

From Theory To Practice I: Passing Judgments Of Exploitation, Mathias Risse, Gabriel Wollner

San Diego Law Review

In an earlier work, we offered a view on how trade should be treated within a theory of global justice. We proposed an account of exploitation to spell out the nature of the obligations that arise from trading. That account greatly benefits from a detailed development for concrete cases. The goal of this study and its close companion is to explore how our philosophical views help formulate judgments on a range of moral problems that arise from trading and to identify responsibilities of various actors and inform policy responses to instances of exploitation in trade.

To that end we use …

Legitimacy And The International Trade Regime, Thomas Christiano

San Diego Law Review

Issues of global justice and trade are usually dealt with in terms of what a just system of trade is like and what the distribution of income, opportunities, or welfare ought to be. But the question I address and explore is what a legitimate way of making decisions in the international realm is. This issue has arisen acutely in the case of the formation of the World Trade Organization (WTO) and other international institutions. In particular, many have complained that developed countries engaged in hard bargaining with developing countries in the conferences that led up to the formation of the …

How To Construct Global Justice, Aaron James

San Diego Law Review

Do social relationships between people give rise to any demands of social justice whatsoever? If they do, are they of any practical significance given the relationships living human beings are actually in? And, might they be so significant as to ground a theory of global justice—if not the whole of anything rightly called justice, then at least of the central range of issues in world politics? Finally, could that perhaps be what a political philosophy of global justice should mainly be about?

Here, in bare outline, is how the answers to all of these questions might be “yes,” at least …

Two Conceptions Of Justice And The Dystopia Of Global Justice, Horacio Spector

San Diego Law Review

Political associations raise special questions of justice. Some authors contend that those special questions derive from characteristic features of the modern state. For instance, Thomas Nagel argues that two defining features of the political community justify associative redistributive duties that hold among its members but not among members and nonmembers. Those features are the fact that the political community exercises sovereign power over its members by resorting to the imposition of coercive rules and the fact that it exercises that power in the name of its members. In this paper, I will not challenge this assertion but will nonetheless argue …

Revising International Law: A Liberal Account Of Natural Resources, Fernando R. Tesón

San Diego Law Review

In this Article, I defend the view that natural resources originally belong to individuals who have legitimately established private property claims over them. Natural resources do not belong to a collective entity such as the people or the state. My argument is simple. Relying on the Lockean contractarian tradition, I argue that individuals must delegate any resource controlled by the state. This is because all powers of the state are, morally, delegated powers. A group’s claims over natural resources is entirely derivative of the original claims of its members. Only individuals can originally appropriate natural resources; only they have the …

Curb Your Enthusiasm For Pigovian Taxes, Victor Fleischer

Faculty Scholarship

Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of using Pigovian taxes more frequently to address serious social harms, some even calling for the creation of a “Pigovian state.”

This academic enthusiasm for Pigovian taxes should be tempered. A Pigovian tax is easy to design—as a uniform excise tax—if one assumes that each individual causes the same amount of harm with …

Motions 2015 Volume 52 Number 3, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

Race And Crime Sixty Years After Brown V. Board Of Education, Donald A. Dripps

San Diego Law Review

Whether the Court, let alone the electorate, has the political will to start down this path is another question. But I remind myself that Dr. King did not despair in his Birmingham jail cell, that Ruth Bader Ginsburg did not despair when asked by the Dean of the Harvard Law School why she was taking a place from a man, and that Evan Wolfson did not despair when the high Court declared that any claim of a constitutional right to private sex between consenting adults was “at best, facetious.”

Ever since abolitionism, the heroes of every American civil rights movement …

Growing Charter School Segregation And The Need For Integration In Light Of Obama’S Race To The Top Program, Brooke Finley

San Diego Law Review

This Article contends that increasing the number of charter schools across the United States per the Obama administration’s RTT initiative is not the answer to closing the racial and economic achievement gap, at least not without significantly more accountability and oversight. Part II describes the RTT initiative and its promotion of more charter schools. This Article suggests that advocating for charter schools may be problematic without proper supervision put in place by the government. Charter schools are privately managed schools that receive public funding, yet they are exempt from some rules that all other taxpayer-funded schools must abide by that …

Introduction, Stephen C. Ferruolo

San Diego Law Review

When Lynne Lasry, President of the Law Alumni Board, suggested we celebrate the 60th anniversary of the University of San Diego School of Law with a public program on Brown v. Board of Education, which was decided on May 17, 1954, just a month after the law school welcomed its first class in April 1954, I enthusiastically endorsed the idea. However, I have to admit that I did not foresee just how fitting commemorating these two milestones would become and what a significant opportunity it would be to both celebrate what our law school has achieved in its relatively short …

Beginning With Brown: Springboard For Gender Equality And Social Change, M. Margaret Mckeown

San Diego Law Review

To paraphrase Winston Churchill, the Supreme Court’s opinion in Brown v. Board of the Education was not the end of litigation over discriminatory practices, nor was it the beginning of the end. It was, however, the end of the beginning. Brown marked a dramatic capstone to a series of lawsuits challenging the concept of “separate but equal” embodied in Plessy v. Ferguson. But it also signaled a new phase of civil rights litigation: advocates emboldened by Brown’s resounding endorsement of equality sought new constitutional protections against discrimination. Among them were women seeking to extend Brown’s logic towards a constitutional mandate …

Juridical Subordination, Roy L. Brooks, Kelly C. Smith

San Diego Law Review

The purpose of this Article is to play out the various conceptualizations of the black equality interest in post-civil rights America. How is the claim of juridical subordination manifested in current Supreme Court cases, and what might civil rights law look like if the Court were to avoid juridical subordination? Our ambition is not to analyze every landmark Supreme Court civil rights case—page limitations prevent us from doing that—but to provide a framework for analysis, setting the table for the juridical subordination inquiry. Furthermore, we do not here attempt to reconcile the disparate ways in which the black equality norm …

Brown, Fisher, And The Necessity Of Context To Achieve Racial Equity In Public Institutions, Kiyana Davis Kiel

San Diego Law Review

The United States Constitution is a social, as well as legal, document and should be interpreted and applied as such. Context is crucial in constitutional interpretations. The law cannot and should not exist in a vacuum. When interpreting the Constitution, the lasting and pervasive impact of structural and institutional racism and the undercurrents of white privilege should not be ignored. In other words, when interpreting the Constitution, the civil rights of non-white society members must be acknowledged and addressed. Purely literal interpretations of law must give way to both legal—precedential—and societal contexts and, in particular, racial equity in the context …

The Battle Of The Branches: The Impact Of The Judiciary And Title Vi On Desegregation In The American Public School System, Kelsey D. Mccarthy

San Diego Law Review

This Comment analyzes the debate regarding the catalyst for desegregation in the American public school system: judicial intervention or Congress’s legislative action, specifically through implementation of Title VI, which authorized revocation of funds to school districts that did not comply with the desegregation mandate. Part I will summarize the historical events and developments that paved the way to the Supreme Court’s decision in Brown. Part II looks at how the Brown decision alone was not enough to effectuate immediate change in southern schools, despite the court’s order in the second Brown decision, Brown v. Board of Education (Brown II) that …

Motions 2015 Volume 52 Number 2, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

Art Resale Royalty Options, Herbert I. Lazerow

Faculty Scholarship

Proposed federal law requires payments from the reseller of art to an artist when her work is resold. They can be conceptualized as a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. Application is analyzed by art type, especially multiples, place of sale, and nationality or residence of the seller, buyer, intermediary or artist, and by what constitutes a sale in a world of leases, exchanges, gifts, bequests, charitable donations, loans and casualty losses. If the base is gross sales price, is that the amount the seller receives, the amount …

Free Trade Then And Now, Or Still Manchester United, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

Libertarianism And The Charitable Tax Subsidies, Miranda Perry Fleischer

Faculty Scholarship

Tax scholarship is largely silent about the interaction between libertarian principles and the structure of our tax system. If all taxation is indeed slavery, as Nozick suggested, why bother analyzing libertarianism for insights into our tax system? This dismissal, however, ignores the diversity of libertarian thought. To that end, this Article mines the nuances of libertarian theory for insights into one feature of our tax system: the charitable tax subsidies. One strand of libertarianism suggests that the charitable tax subsidies are in and of themselves illegitimate. Yet several other understandings of libertarianism see a role for the state to engage …

Is Law A Technical Language?, Frederick Schauer

San Diego Law Review

Although I believe that the collapse of the interpretation—construction distinction follows from some of what I have argued here, that conclusion is, at least for me, decidedly secondary. Far more important is recognition of the importance of the question of technical language in law and of the relationship between that question and the purposes of and audiences for law. If we are to understand what law is and how it operates, we need to understand to whom it speaks. If it speaks to everyone, as Bentham urged, then technical language in law is something to be lamented and expunged. But …

A Reason To Resist: The Use Of Deadly Force In Aiding Victims Of Unlawful Police Aggression, Kindaka Sanders

San Diego Law Review

Some two and a half years before the fatal shooting of Michael Brown by a Ferguson, Missouri Police Officer, the Indiana State Legislature enacted Indiana Code § 35-41-3-2 authorizing the use of force, including deadly force against public servants acting unlawfully against the persons or property of Indiana citizens. The statute, passed in March of 2012, is the first of its kind. It was passed in reaction to the Indiana Supreme Court's decision in Barnes v. State, which abolished the common law right to resist an unlawful arrest. Gun rights groups, most notably the National Rifle Association (NRA), responded in …

Whose Genome Is It Anyway?: Re-Identification And Privacy Protection In Public And Participatory Genomics, Sejin Ahn

San Diego Law Review

This Comment advocates for a comprehensive solution to achieve the balance between privacy rights and availability of information. In particular, a strong ban on malicious re-identification and broader anti-discrimination and privacy legislation are necessary to ensure the participants' privacy protection and encourage participation in genomics projects. In addition, the scientific community should establish data standards that can aid in implementation of protective measures to minimize privacy violations. Part II provides an overview of recent developments in genomic technologies and public and participatory genomics. Part III summarizes the privacy issues present in public genomics. Part IV reviews current legislation on genetic …

High-Speed Trading On Stock And Commodity Markets—From Courier Pigeons To Computers, Jerry W. Markham

San Diego Law Review

A growing concern in the stock and commodity markets over the last several years has been the rise of high-frequency traders (HFTs). Those traders employ high-speed computer technology for the algorithmic origination, transmission and execution of their orders through fiber optic cables and microwave towers. That technology allows HFT orders to be executed in times measured in fractions of a second. As a result of this technological advance, HFTs are now dominating trading volumes. This phenomenon has, on the one hand, led to claims by proponents of high-speed trading that HFTs are an important source of market liquidity and should …

The Rule Of Reason And The Scope Of The Patent, Herbert Hovenkamp

San Diego Law Review

For a century-and-a-half, the Supreme Court has described perceived abuses of patents as conduct that reaches "beyond the scope of the patent." That phrase, which evokes an image of boundary lines in real property, was applied to both government and private activity and came to have many different meanings. Sometimes it was used offensively to conclude that certain patent uses were unlawful because they extended beyond the scope of the patent. Later it came to be used defensively as well, to characterize activities as lawful if they did not extend beyond the patent's scope. In the first half of the …

Do Free Mobile Apps Harm Consumers?, J. Gregory Sidak

San Diego Law Review

Google distributes proprietary applications for its open-source Android mobile operating system (OS) free of charge. Some of those applications (apps) are offered together as a suite of apps known as Google Mobile Services (GMS). Manufacturers of mobile devices can agree, pursuant to Google's Mobile Application Distribution Agreement (MADA), to install the suite of apps on their devices at a price of zero. Some theorize that Google's policy of offering some applications together as a suite of apps harms competitors or menaces consumer welfare. In April 2015, the European Commission expressed such concerns when it initiated a formal antitrust investigation that …

Do Economic Downturns Dampen Patent Litigation?, Alan C. Marco, Shawn P. Miller, Ted M. Sichelman

Faculty Scholarship

Recent studies estimate that the economic impact of U.S. patent litigation may be as large as $80 billion per year and that the overall rate of U.S. patent litigation has been growing rapidly over the past twenty years. And yet, the relationship of the macroeconomy to patent litigation rates has never been studied in any rigorous fashion. This lacuna is notable given that there are two opposing theories among lawyers regarding the effect of economic downturns on patent litigation. One camp argues for a substitution theory, holding that patent litigation should increase in a downturn because potential plaintiffs have a …

Motions 2015 Volume 52 Number 1, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

From Rescue To Representation: A Human Rights Approach To The Contemporary Anti-Slavery Movement, Austin Choi-Fitzpatrick

School of Peace Studies: Faculty Scholarship

Current efforts to end contemporary slavery represent a fourth wave of an Anglo-American abolitionist movement. Despite this historic precedent, there is little agreement on the nature of the problem. A review of current academic discourse, movement frames, and policy approaches suggests that six perspectives predominate: a prostitution approach focused on sexual exploitation of “women and girls”; a migration approach focused on the cross-border flow of migrants; a criminal justice approach focused on law and enforcement; a forced-labor approach emphasizing unfree labor; a slavery approach focused on trafficking in comparative-historical context; and a human rights approach centered on individual rights. This …

Delaware’S Familiarity, Brian J. Broughman, Darian M. Ibrahim

San Diego Law Review

This Article builds on our prior empirical research showing that, everything else equal, start-up firms financed by out-of-state investors are more likely to incorporate in Delaware. We argue that this finding is due to out-of-state investors’ familiarity with Delaware corporate law, and relative lack of familiarity with the corporate law of the start-up’s home state. In the current project, we extend our prior research by (i) developing an informal model distinguishing investor familiarity from related economic theories of network effects and learning effects, (ii) showing that our data are more consistent with familiarity than with these alternative explanations, and (iii) …

Deliberate Destitution As Deterrent: Withholding The Right To Work And Undermining Asylum Protection, Lori A. Nessel

San Diego Law Review

This Article critiques the United States’ bar on employment for asylum seekers on a number of fronts. Beginning with a historical perspective, I explore the more humane regime that existed in the United States until 1995. Under this prior system, asylum seekers with bona fide claims were permitted to work while their claims proceeded. This Article examine the underlying fears and policy goals that led Congress to dramatically curtail protection and the right to work for asylum seekers. By situating the prohibition on work for asylum seekers within the larger context of overall punitive immigration reforms and the increasing criminalization …