Law Commons^™

V.58-4, 2021 Masthead

San Diego Law Review

No abstract provided.

Eradicating Race-Based Health Disparities By Effectuating The Fair Housing Act's De-Segregation Intent, Parisa Ijadi-Maghsoodi

San Diego Law Review

This Article illustrates how Congress did not adopt this anti-segregation legislation in a vacuum. Rather, as the Supreme Court recently acknowledged, the FHA was a response to racial segregation. Congress enacted the legislation days after Dr. Martin Luther King Jr.’s assassination and on the heels of the Kerner Commission’s report, which identified segregation as the cause of unprecedented nationwide civil unrest.

Part II of this Article demonstrates how housing is a major determinant of health, identifies the extent to which our nation is segregated, and illustrates how segregation exacerbates health inequities among racial and ethnic lines. Part III presents the …

Introduction: Racism Without Racists, Robert A. Schapiro

San Diego Law Review

This Symposium on Systemic Racism offers a timely review and analysis of an urgent and persistent problem plaguing the United States. Many of the narratives we offer about the history and trajectory of law and society emphasize progress with respect to racism and the struggle for equality. We note the milestones of racial progress: the Thirteenth Amendment’s abolition of slavery in 1865; the 1868 adoption of the Fourteenth Amendment with its command of “equal protection”; the Supreme Court’s 1954 decision in Brown v. Board of Education declaring state-sponsored racial segregation unconstitutional; the enactment of the Civil Rights Act of 1964, …

Systemic Racism: Patterns Of Black Disadvantage And White Advantage Linked To Slavery, Roy L. Brooks

San Diego Law Review

In this Article, I engage systemic racism in two ways. First, I discuss some of its current manifestations, Part II. In particular, I will offer powerful examples of systemic racism, Section A, and explain the link between slavery and extant systemic racism, Section B. Next, I analyze the forces in this country that sustain systemic racism well into the post-civil rights period, Part III. I will spend a fair amount of time examining socio-psychological paradigms and institutional practices or policies that perpetuate or contribute to manifestations of systemic racism. The former consists of various forms of racial bias, Section A, …

This Is The House That Law Built: A Systems Story Of Racism, Palma Joy Strand

San Diego Law Review

In this essay, I explore the system-ness of racism. A systems understanding of racism enables us to more fully comprehend the magnitude and depth of racism, its reach and rootedness. This systems understanding provides the foundation for some initial and overarching observations about law and systemic racism.

Think Nationally, Act Locally: Cities And The Struggle For Social Justice, Harold Mcdougall

San Diego Law Review

Liberals and progressives typically look to the national government to make policy aimed at achieving social justice. Historically, that is not without reason. As Professor Kathleen Morris of Golden Gate University School of Law put it in a recent email exchange, "social elites reached for the federal level in large part because the states and localities proved themselves to be genuinely terrifying to marginalized folks between 1860 and 1980.”

Few things remain constant in the struggle for social justice, however. The liberal and progressive national focus backfired as conservative and right-wing forces built power in state legislatures, enabling them to …

The Death Row Phenomenon: A Prohibition Against Torture, Cruel, Inhuman And Degrading Treatment Or Punishment, Nkem Adeleye

San Diego Law Review

Several debates on the legitimacy, constitutionality, and acceptability of the death penalty have arisen throughout the years. The death row phenomenon refers to the psychological effects on prisoners of being on death row for a prolonged period while awaiting an imminent execution under harsh conditions of confinement. Having been declared a violation of a customary norm of international law by several international tribunals and national courts, this Article explores the possibility of the death row phenomenon, as a legal concept, becoming widely accepted and ultimately preventing the execution of another category of offenders. The existence of a lack of judicial …

Race-Based Discrimination In The Totality Of The Circumstances: Why America's Highest Court Should Permit Section 2 Voting Rights Act Challenges To State Felon Disenfranchisement Laws, Ellen Atkinson

San Diego Law Review

Betty McKay served twenty-seven years in prison. During her past three years on parole, she became a motivational speaker, justice advocate, and organizer. Similarly, John Windham served thirty years in prison. Since his release from prison to parole in 2018, he became a motivational speaker and consultant, and works with nonprofits providing reentry services to others formerly incarcerated. But that is not all Ms. McKay and Mr. Windham have in common: Neither has ever been able to vote. They are among the 50,000 parolees in the State of California that, despite having served their prison sentences, have been barred from …

Multimember Legislative Bodies And Intended Meaning, Jeffrey Goldsworthy

The Journal of Contemporary Legal Issues

Intentionalists agree that the meaning of an ordinary communication is either identical to or depends heavily on what the speaker or author intended it to be. But the “or” marks a disagreement between “subjective” intentionalists, such as Larry Alexander and Richard Kay, and “objective” intentionalists such as me.

Subjective intentionalists claim that the meaning of any communication is whatever its speaker intended it to mean. Objective intentionalists find this dubious because it seems possible for the meaning that people intend to communicate to differ from the meaning they do communicate. It surely cannot be the case that, whenever we speak …

Introduction To Symposium On Birth Rights And Wrongs, By Dov Fox, Peter Schuck

The Journal of Contemporary Legal Issues

This symposium consists of four essays by leading academic commentators developing their distinctive takes on the book, followed by a conclusion by Professor Fox containing detailed responses to each of them. This introduction provides a very brief, largely descriptive tour d’horizon of the commentators’ essays.

Birth Rights And Birth Wrongs Through A Common Law Lens: Why The No Liability Regime Is Likely To Endure, Richard A. Epstein

The Journal of Contemporary Legal Issues

Dov Fox’s recent book, the aptly named Birth Rights and Wrongs, is, as its title suggests, a study of the stark conflicts that arise in the highly contested area of reproductive rights. Fox makes the powerful case that the legal protection of reproductive rights, in all their protean forms, is systematically under-protected relative to two key benchmarks: the standards of ordinary decency, and social expectations. In my view, he has an acute awareness of these failures. But his greatest strength is also his greatest weakness, as he systematically ignores the great successes wrought through the current system, as disjointed …

The Two Problems

The Journal of Contemporary Legal Issues

Multimember Legislative Bodies and Intended Meaning.

Joint Action, Intended Meaning, And (Statutory) Interpretation, Richard Ekins

The Journal of Contemporary Legal Issues

Smith and Jones (singular) is an exporting firm, an agent. It is formed by two partners, Smith and Jones (plural), acting jointly and is thus a small purposive group. Mary is the firm’s employee. She forms part of the group insofar as her acts will be acts of the firm. Mary acts on written instructions, which means that Smith and Jones jointly direct Mary by way of instructions to which they both agree, the agreement of each partner being signified by each signing a memorandum.

Smith and Jones jointly stand to Mary as superior to inferior. The firm has a …

Using A Firearm, Using A Word: What Interpretation Just Is, Walter Benn Michaels

The Journal of Contemporary Legal Issues

My response to these hypotheticals is going to be useless, although, I hope, in a useful way. It’s going to be useless because I’m an English teacher, not a lawyer, and I have no idea what Mary or the judge should do. But, of course, Larry Alexander and Steve Smith already knew this when they asked me to contribute. Presumably, it’s in my capacity as a theorist of interpretation and in particular (since the hypotheticals might be understood to raise particular difficulties for intentionalists) as an intentionalist theorist that they asked for my views. But, as an intentionalist theorist, I …

The Moral Cost Of Compensatory Damage Claims In Reproductive Negligence Cases, David Wasserman

The Journal of Contemporary Legal Issues

In this original and important work, Dov Fox makes a compelling case for rethinking and reformulating the way that negligent conduct by reproductive health professionals is understood, and in the way the harms resulting from that misconduct are rectified. He seeks a unified account of this negligence and harm that recognizes the “gravamen of the offense” as the wrongful interference with reproductive planning while also recognizing three distinct categories of adverse outcomes: deprived, imposed, and confounded procreation. Fox argues that the injuries in each category differ from each other sufficiently to justify the recognition of three distinct torts.

Birth Rights And Wrongs Extended, Reuven Brandt

The Journal of Contemporary Legal Issues

Dov Fox’s Birth Rights and Wrongs offers a largely compelling argument for expanding the scope of legal actions and remedies available to those whose reproductive choices are wrongfully frustrated by the actions of others. The dominant focus of the book is individuals who, due to the negligence and/‌or malice of medical professionals, suffer harms arising from reproduction imposed, denied, or confounded. A serious examination of these kinds of injuries is certainly appropriate given that medical professionals are increasingly involved in individuals’ reproductive plans and that serious harms may arise when desired medical interventions are improperly implemented. I will not take …

Intentional Procreation, Robin L. West

The Journal of Contemporary Legal Issues

Dov Fox’s book Birth Rights and Wrongs makes the case for the development, through judicial decision-making, of various torts that would respond to the disruption of intentional conception, contraception, gestation and childbirth, where those intentions are thwarted because of the negligence of professionals employed to assist or guide consumers of their services in reaching their reproductive goals.

Formalist Textualism And The Cernauskas Problem, Larry Alexander

The Journal of Contemporary Legal Issues

In a recent article, Tara Grove distinguishes between what she calls “formalist textualism” and “flexible textualism.” Formalist textualism is really another term for literalism, in which statutory and constitutional language is given its semantic meaning—presumably its meaning at the time of enactment—in its “semantic context.” Grove illustrates the latter by pointing out that the phrase “domestic violence” appears in a statute that also mentions “insurrection,” thus suggesting that domestic violence there refers to acts similar to insurrection rather than to spousal abuse.

Flexible textualism, on the other hand, looks beyond the semantic meaning of the text and its semantic context …

Family Planning And Its Limits, Dov Fox

The Journal of Contemporary Legal Issues

A doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. Our laws do little to deter such reproductive negligence or compensate its victims. Some of this misconduct leaves people without the baby they desperately want. Other times, it foists on parents a child they’d set out to avoid. Or one with meaningfully different traits than what they were led to believe.

I call these three harms procreation deprived, procreation imposed, and procreation confounded.

Thousands of fertility patients were deprived of biological parenthood when their …

Plural Agents, Private Intentions, And Legal Interpretation, Scott Soames

The Journal of Contemporary Legal Issues

The chief problem posed in Multimember Legislative Bodies and Intended Meaning is one in which lawmakers pass a tax bill supported by two equal groups with conflicting interpretations of the bill’s content. One believes it taxes imported tomatoes, among other things; the other believes it exempts tomatoes. They disagree because they received supposedly authoritative, but in fact conflicting, information about the meaning of “fruit” in the bill’s text. One group was told it is used with its biological sense, which includes tomatoes as edible seed-bearing reproductive parts of a plant. The other group was told that “fruit” is used with …

Commentary, Stanley Fish

The Journal of Contemporary Legal Issues

Suppose you are walking in the corridors of a law firm and you hear a person in one of the offices say “You have no consideration.” What do you take the speaker to have said or meant? You might reasonably assume that you have overheard a snatch of a conversation between a lawyer and a client who is being told that he cannot allege breach of contract because in the conversation he reports between himself and the one he would accuse there was an absence of reciprocally offered inducements of the kind “if you do X, I will do Y” …

(Hypothetical) Communication In (Hypothetical) Context, Gary Lawson

The Journal of Contemporary Legal Issues

I will start with the second of our two “group minds” problems, involving potentially differing understandings of fruit, because I think it is conceptually simpler, or at least more amenable to an answer, than is the first problem.

The precise question is how I would handle the problem of application of the fruit tax to tomatoes and kiwi if that problem came before me as a judge. That specification of interpretative role is crucial.

At the outset, we need one very important piece of information that is not provided: What is the governmental form of Lex? If Lex is a …

Panel Discussion: Energy Resilience And Deep Decarbonization, Miguel Romero

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Insights On Electrification And Energy Resilience, Tony Clark

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Decarbonization With Decarceration: Renewable Rikers And The Transition To Clean Power, Rebecca Bratspies

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Fact Or Doctrine? Inconsistencies In The Application Of The Dormant Commerce Clause’S Extraterritoriality Principle To Challenges To State Climate Change Prevention Policies, Kelsey Gagnon

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Keynote: Decarbonizing The Electricity Sector, Siva Gunda

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Energy Resilience And Extreme Weather Events, Alice Reynolds

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Hydropower’S Promise: The Opportunities And Challenges Of Hydropower For Mitigating Climate-Driven Scarcity, Lauren Perkins

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Virtual Power Plants And The Climate Challenge, Kevin B. Jones

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.