Law Commons^™

24-1, 2022 Masthead

San Diego International Law Journal

No abstract provided.

End Crime With Harm? Castration For Sexual Offenders In Hong Kong, Max Hua Chen

San Diego International Law Journal

The issue of post-conviction treatment of sex offenders has been the subject of debate and changes to State legislation, particularly in respect of paedophile offences. One such treatment method is through chemical or physical castration on either a mandatory or a voluntary basis. In this regard, some States have implemented these measures for certain paedophile offences. Hong Kong (HK) has no such laws in place. Researchers such as William Winslade and his colleagues highlighted that whilst paedophilia may not be a stringently defined condition, it is one which involves a “reinforcing [pattern] of sexual behaviors,” with the result that sexual …

Long Live Joint Criminal Enterprise: With A Particular Reference To Tadić’S Interactive Construction Between “The Beast” And Specific Direction, Miguel Ângelo Loureiro Manero De Lemos

San Diego International Law Journal

The idea that Joint Criminal Enterprise, in particular its extended version, contravenes fundamental principles of criminal law has gained track. Thus, not only did the International Criminal Court distance itself from the construct but, today, the widely held view is that the extended version should be discarded, not least because it is not grounded in customary international law. This Article challenges that view. While addressing scholarly criticism towards Joint Criminal Enterprise, and demonstrating why the “beast” is a solid construction, it argues that prosecutors and judges must look past the written provisions of the Statute of the International Criminal Court …

‘I Will Control Your Mind’: The International Regulation Of Brain-Hacking, Thibault Moulin

San Diego International Law Journal

In the near future, the use of neurotechnologies—like brain-computer interfaces and brain stimulation—could become widespread. It will not only be used to help persons with disabilities or illness, but also by members of the armed forces and in everyday life (e.g., for entertainment and gaming). However, recent studies suggested that it is possible to hack into neural devices to obtain information, inflict pain, induce mood change, or influence movements. This Article anticipates three scenarios which may be challenging in the future—i.e., brain hacking for the purpose of reading thoughts, remotely controlling someone, and inflicting pain or death—and assesses their compliance …

K-Pop’S Secret Weapon: South Korea’S Criminal Defamation Laws, Rebecca Xu

San Diego International Law Journal

South Korea’s criminal defamation laws have long been considered an intrusion on the free speech rights of citizens, especially in regard to the usage by politicians against their opponents and journalists to suppress criticisms. This Comment considers the history and effects of these controversial defamation laws through the lens of recent scandals within the Korean entertainment industry, where regular citizens accusing Korean celebrities of past school violence are confronted with threats of defamation charges. To highlight the controversial nature of such laws, comparisons will be drawn between South Korea and other countries to highlight the restrictive nature of Korea’s laws.

A Path Forward To #Niunamenos Based On An Intersectional Analysis Of Laws Criminalizing Femicide/Feminicide In Latin America, Melissa Padilla

San Diego International Law Journal

Since 2007, eighteen Latin American countries have enacted laws that criminalize femicide/‌feminicide in an effort to address gender-based murders in the region and to uphold their obligations under international human rights law. However, the COVID-19 pandemic and its systemic lingering effects exacerbated the existent dangerous levels of gender-based violence in the region, resulting in an increase in gender-based murders. To address these murders, between 2020 and 2021, a quarter of the eighteen Latin American countries that criminalized femicide/‌feminicide have implemented or are in the process of implementing reforms to their laws criminalizing femicide/‌feminicide. Given this new trend to address the …

Deportations For Drug Convictions In The United States And The European Union: Creating A More Compassionate Approach Toward Drug Convictions In The Immigration Law, Megan Smith

San Diego International Law Journal

This Comment begins by examining and comparing the legal framework for deportation and other immigration consequences for convictions of drug offenses in the United States, the European Union, and the United Kingdom. This Comment then looks at the harsh effects of current immigration policy on individuals and marginalized communities. Finally, this Comment argues that immigration law should be reformed to adopt a more humanitarian approach toward non-citizens convicted of drug offenses. Deportation and other harsh immigration consequences for drug offenses levy disproportionately severe punishments toward vulnerable minority immigrant communities, exposing them to consequences much harsher than non-immigrants would face for …

Responsibility, Lawyering, Justice, David Mcgowan

Responsibility, Lawyering, Justice

Between 1942 and 1946, approximately 112,000 persons of Japanese ancestry were ordered to leave their homes and were transported to internment camps where they were held under armed guard. Four cases litigated before the United States Supreme Court dealt with orders related to this policy: Hirabayishi v. United States, Yasui v. United States, Korematsu v. United States, and ex parte Endo. Property deprivation related to internment was at issue in Oyama v. California. This note discusses whether the Solicitor General of the United States violated a duty of candor in Hirabayashi and Yasui or in Korematsu. That question requires analysis …

Responsibility, Lawyering, Justice, David Mcgowan

Faculty Scholarship

Between 1942 and 1946, approximately 112,000 persons of Japanese ancestry were ordered to leave their homes and were transported to internment camps where they were held under armed guard. Four cases litigated before the United States Supreme Court dealt with orders related to this policy: Hirabayishi v. United States, Yasui v. United States, Korematsu v. United States, and ex parte Endo. Property deprivation related to internment was at issue in Oyama v. California. This note discusses whether the Solicitor General of the United States violated a duty of candor in Hirabayashi and Yasui or in Korematsu. That question requires analysis …

Advocate, Fall 2022, Office Of Development And Alumni Affairs, University Of San Diego School Of Law

Advocate

No abstract provided.

V.23-2, 2022 Masthead

The Journal of Contemporary Legal Issues

No abstract provided.

Which Inequalities Matter?, Richard J. Arneson

The Journal of Contemporary Legal Issues

Why does equality across persons matter morally? An equal split can be instrumentally useful, for example, when a parent is dividing treats among hawk-eyed children, who will squawk at unequal distribution. Does equality of some sort matter morally and noninstrumentally, for its own sake? If so, which sort? If so, on what grounds?

The claim this essay shall explore is that the equality that matters morally in itself or for its own sake is equality in the lifetime well-being enjoyed by persons. Every term in this seemingly bland formulation contains a land mine that can explode into controversy. Stepping carefully …

The Pedagogy Of "Equality", Sanford Levinson

The Journal of Contemporary Legal Issues

I was very grateful to receive an invitation to participate in the San Diego symposium on equality. The gratitude was tempered, however, by my realization that I had nothing of true value to contribute in terms of the deep theoretical problems surrounding the use (or critique) of the term “equality.” After all, “equality” has been the topic of systematic examination for roughly 2,500 years. More to the point, perhaps, is that I am scarcely an expert myself in the vast, and ever-growing, literature on the subject. As true of many other law professors, that has not kept me from writing …

Inequality Of Deservingness, Ariel Jurow Kleiman

The Journal of Contemporary Legal Issues

This Essay explores how the U.S. tax system—the primary mechanism for distributing antipoverty cash benefits—is poorly suited to evaluating recipients’ deservingness. In doing so, it defines and formalizes the concept of inequality of deservingness, which is dyadic in nature. The first form of such inequality is that of “true deservingness.” True deservingness is somewhat abstract, arising from the distributive justice frameworks that underlie antipoverty program design in the United States. In Part II, the Essay briefly describes the major federal U.S. antipoverty programs, which mostly target support to families with children, people with disabilities, and workers. Working backwards, I then …

Michael Perry, Prophet Of Progressive Collapse, Steven D. Smith

The Journal of Contemporary Legal Issues

In this essay, I will discuss these implications, and will reflect on how Michael Perry’s seemingly upbeat book can today be viewed as a harbinger of darker developments that were to come, and that are now upon us.

"Under Color Of Law"? Rogue Officials And The Real State Action Problem, Larry Alexander

The Journal of Contemporary Legal Issues

It is black letter law that violations of section one of the Fourteenth Amendment can only be committed by “the state.” For it is “the state” that the amendment commands not to abridge privileges or immunities of citizens, deprive persons of life, liberty, and property without due process of law, or deny persons equal protection of the law. And this prompts the question, how do we know when the state has acted?

One way the state acts is by legislating, by enacting rules of conduct. Lawmaking is a paradigmatically state action.

This state also acts by enforcing or implementing the …

"Hang The Kaiser:" Philosophically Mediated Explanations Of World War I By The Decisions And Actions Of Those Responsible For The War, Michael S. Moore

The Journal of Contemporary Legal Issues

There has been a long-standing curiosity about why Europe destroyed itself in 1914 by starting the catastrophe known as World War I. In the past decade some of this interest was no doubt due to the coincidental fact that one hundred years had passed since the events in question took place. But the origins of the War hold a much deeper interest than that. Part of that deeper interest stems from the perceived impact that War had on the subsequent history not only in Europe, but in the rest of the world—the Russian Revolution, the end of colonial empires, World …

What Is It For Us To Be Moral Equals? And Does It Matter Much If We're Not?, Kasper Lippert-Rasmussen

The Journal of Contemporary Legal Issues

The main concern here will be to clarify what it means for us to be moral equals (and thus what it means for us not to be so). Specifically, I want to address two questions about the nature and significance of basic moral equality. First, what is the difference between what I shall call epiphenomenal moral equality and non-epiphenomenal moral equality? This distinction is often ignored, or overlooked, and this is unfortunate because it hides from view a decision that many will seem a dilemma. If, in affirming the moral equality of all persons, we mean the non-epiphenomenal kind, moral …

Michael Perry And Disproportionate Racial Impact, Larry Alexander

The Journal of Contemporary Legal Issues

I am delighted to be contributing to this festschrift honoring Michael Perry. He and I go back a long way. He may not remember how far back, but I do. In 1980, when Michael was a faculty member at Ohio State’s law school, he organized a symposium on John Ely’s recent Democracy and Distrust, and he invited me to contribute to it, which I did. (The contributions were published in the 1981 volume of the Ohio State Law Journal.) I am not sure Michael knew me then, or why he invited me, but we have known each other and …

Relevance And Equality: An Analytical Account, Pedro Moniz Lopes

The Journal of Contemporary Legal Issues

In day-to-day life, one is compelled to compare. In replying to a question on one’s favorite things, one will group them together based on the satisfaction one is provided with, leaving out the rest. In discussing the issue of spiteful people, one is promptly reminded of some common features of individuals whose actions typically meet the required criteria (or the criteria one sets for such category). In metaphorical speech—for instance, by descriptively asserting that “no man is an island”—one grounds the assertion on past knowledge of the prototypical isolation of islands to, then, negate the transfer of such features to …

Morey And Les, George Sher

The Journal of Contemporary Legal Issues

In my book Equality for Inegalitarians, I combined a sufficientarian approach to the distribution of resources and opportunities with an egalitarian approach to the distribution of a more abstract good that I called “the ability to live one’s life effectively.” As I defined living effectively, it requires a degree of success in the pursuit of one’s rational aims, so there is an obvious danger that even if two people both have sufficient resources and opportunities, the difference in the amount by which they exceed the threshold will cause them to differ in their ability to live effectively. However, to …

Goodbye To All That: Three No-Longer-Quite-Contemporary Theories Of Equality And Something More Up-To-Date (And Worse), Maimon Schwarzschild

The Journal of Contemporary Legal Issues

The idea of equality, and even the word equality, exercises great moral and political force, but it is a notoriously protean idea. Equality can mean many things, many of them in tension with one another or utterly contradictory to each other. Nonetheless, a Lockean idea of equality has predominated in American political thought, and—imperfectly, like any ideal put into human practice—in American life throughout most of American history. The Lockean idea of equality is roughly that human beings have equal natural rights to life, liberty, and property: with the implication that political society should ensure these rights through the impartial …

Money As A Currency Of Justice, Aaron James

The Journal of Contemporary Legal Issues

Is money a “currency of justice”? That is, insofar as justice requires us to distribute something among people, is money one of those things, fundamentally speaking?

It isn’t according to many philosophers in the “currency debate,” who either assign money no fundamental importance, or at least do not unequivocally affirm its non-instrumental significance, as I’ll explain. Theory, in this respect, stands apart from ordinary opinion. Not only does money matter greatly to most of us, who has it, and who should have more or less of it—whether in dollars, euros, or renminbi—is ordinarily one of the main ways we evaluate …

Michael Perry And Human Rights, Andrew Koppelman

The Journal of Contemporary Legal Issues

Michael Perry’s lifelong project has been to give a philosophical account of human rights, beginning with its foundational basis and ending with specific prescriptions for controversial cases. His writing is notable for the moral urgency he brings to the task—an urgency that is often underscored by his conscientious willingness to engage with objections and to rethink his arguments. For most scholars, such willingness is the only opportunity we have in our work to display the virtue of courage. It is an opportunity too often declined, but never by Perry. All this makes him admirable, not only as a scholar, but …

Moral Equality?, Michael J. Perry

The Journal of Contemporary Legal Issues

The particular version of the foregoing question I address in the following pages is this: What nontheistic reason or reasons do we have, if any, to accept the morality of human rights, a core constituent of which is the right to moral equality: the right of every human being to be treated as the moral equal of every other human being in this sense: as equally entitled with every other human being to be treated—as no less worthy than any other human being of being treated—in what Article 1 of the Universal Declaration of Human Rights calls “a spirit of …

Luck Egalitarianism And The Spirit Of Capitalism, Horacio Spector

The Journal of Contemporary Legal Issues

This paper is organized in six sections. In the following section, I discuss Dworkin’s and Cohen’s views regarding the function of markets in providing a method of social assessment. I suggest that their treatment of social valuation is of limited use because it is restricted to rudimentary economic systems like the immigrants’ island and the camping trip. In section III, I argue that the principle of responsibility is indeterminate in that it lacks a criterion of social value. I also claim that a Paretian interpretation of social value is the most plausible way to give concrete meaning to the idea …

Towards An Analysis Of Social Hierarchy, Niko Kolodny

The Journal of Contemporary Legal Issues

Much in our interior mental lives and in our exterior social structures presupposes that we, human beings, are conscious of social hierarchy, of differences in rank and status. We are “conscious” of hierarchy in both senses of the word: “aware” of and “anxious” about. This consciousness appears to be rooted in our natural history. Many social animals are likewise preoccupied with “pecking order.” These animals include not only chickens, who literally peck, but also our closest primate relatives. And this consciousness of hierarchy, transformed by our species’ special bent for symbol and self-reflection, has driven much of our non-natural history. …

Good Intentions Gone Awry: Privacy As Proportionality Under Rule 26(B)(1), Hon. James C. Francis Iv (Ret.)

San Diego Law Review

Over the past several years, two legal trends have gained momentum. The first is the effort to make discovery in litigation more proportional, culminating in the 2015 amendment to Rule 26(b)(1) of the Federal Rules of Civil Procedure, which includes proportionality in the definition of what information is discoverable. The second is the movement, both in the United States and abroad, toward the greater recognition of individual privacy interests. Some courts and commentators now seek to merge these two trends by advocating that privacy should be considered a factor in analyzing proportionality under Rule 26(b)(1).

This paper takes the position …

V.59-3, 2022 Masthead

San Diego Law Review

No abstract provided.

Antigone And Les Misérables: A Pathetic Look At Jury Nullification, Andrew Lambert

San Diego Law Review

This paper considers whether and why criminal juries choose to "nullify" a verdict by acquitting the defendant despite the prosecution proving its case beyond a reasonable doubt. To examine jury nullification, this paper turns to two pieces of theater - Antigone and Les Misérables. In each play, the protagonist is unquestionably guilty of a crime but the audience champions them anyway. Examining why audiences absolve the protagonists explains why juries acquit otherwise guilty defendants.