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Full-Text Articles in Law
Sameness, Subordination, And Perfectionism: Toward A More Complete Theory Of Employment Discrimination Law, Kimberly A. Yuracko
Sameness, Subordination, And Perfectionism: Toward A More Complete Theory Of Employment Discrimination Law, Kimberly A. Yuracko
San Diego Law Review
This Article focuses on two muddled and contested areas of sex discrimination case law - the first deals with sexuality and the second with gender nonconformity in the workplace. Both are areas in which courts, at times, impose significant accommodationist demands on employers in the name of Title VII's antidiscrimination mandate. Section II addresses cases in which employers attempt to discriminate on the basis of sex in order to protect customers' personal or sexual privacy or to provide customers with a particular kind of sexual titillation. As a general matter, courts permit discrimination in the first type of case - …
Reflections On Equality, Adjudication, And The Regulation Of Sexuality At Work: A Response To Kim Yuracko, Orly Lobel
Reflections On Equality, Adjudication, And The Regulation Of Sexuality At Work: A Response To Kim Yuracko, Orly Lobel
San Diego Law Review
I make three observations on Yuracko's thesis to explain these ideas. First, in Part II, I argue that it is possible to explain the case law distinctions between various categories of BFOQ claims within the liberal model of antidiscrimination. Specifically, I turn to a more robust analysis of the antisubordination paradigm than Yuracko describes in her paper. I argue that we should consider the dangers of under-inclusion in one sector as the result of structural inequalities across the workforce. Because of the need to take a more macro approach in addressing the effects of discrimination on the market at large, …
Introduction, Larry Alexander
Introduction, Larry Alexander
San Diego Law Review
The outstanding collection of articles and comments thereon that follows this Introduction constitute the 2006 Editors' Symposium of the San Diego Law Review. The theme for this symposium is: "The Rights and Wrongs of Discrimination."
Justice For Large Earlobes! A Comment On Richard Arneson's "What Is Wrongful Discrimination?", Andrew Koppelman
Justice For Large Earlobes! A Comment On Richard Arneson's "What Is Wrongful Discrimination?", Andrew Koppelman
San Diego Law Review
At different points in his paper, Professor Arneson offers two inconsistent descriptions of what his paper tries to accomplish. The first is to answer his title question. The second is to answer that question within a deontological morality that holds, contrary to act consequentialism, that what is morally right and wrong ... is fixed by ... moral constraints [which] mainly take the form of moral rights of others that are correlative with moral obligations that one must not violate these rights. In a footnote, Professor Arneson explains that this assumed moral framework is not the one I would ultimately endorse. …
Why Not Regulate Private Discrimination?, Matt Zwolinski
Why Not Regulate Private Discrimination?, Matt Zwolinski
San Diego Law Review
In this Article I examine the disparity between attitudes toward regulating private discrimination and those concerning the regulation of what I will call "commercial" discrimination. My hope is to find a theory that can simultaneously explain these divergent attitudes by providing an account that fits the various aspects of our legal practices and our attitudes toward them, and justify those practices by providing an account that makes the divergence attractive from a moral point of view. I focus on an explanation of the disparity that is grounded in three different sorts of considerations: differences in our epistemological access to private …
Left Libertarianism And Private Discrimination, Peter Vallentyne
Left Libertarianism And Private Discrimination, Peter Vallentyne
San Diego Law Review
Left-libertarianism, like the more familiar right-libertarianism, holds that agents initially fully own themselves. Unlike right-libertarianism, however, it views natural resources as belonging to everyone in some egalitarian manner. Left-libertarianism is thus a form of liberal egalitarianism in that it recognizes both liberty rights and equality rights. In this Article, I shall lay out the reasons why (1) left libertarianism holds that (a) private discrimination is not intrinsically unjust and (b) it is intrinsically unjust for the state to prohibit private discrimination; and (2) that, nonetheless, a plausible version of left libertarianism holds that it is unjust for the state, and …
Explanation, Vindication, And The Role Of Normative Theory In Legal Scholarship, Connie S. Rosati
Explanation, Vindication, And The Role Of Normative Theory In Legal Scholarship, Connie S. Rosati
San Diego Law Review
I find Yuracko's inquiry quite intriguing, but I have doubts about the central thesis. My aim, in the discussion that follows, is to press Yuracko on two fronts, one methodological, the other substantive. As concerns substance, I shall say a bit as this commentary progresses about why Yuracko would need much more support to make good on her claim that an implicit perfectionism explains decisional antidiscrimination law. My chief interest, however, lies with certain questions as to what methodology she means to follow in her efforts to develop a more complete theory of employment discrimination law. Yuracko's approach is one …
Defining The Antidiscrimination Norm To Defend It, Mark Kelman
Defining The Antidiscrimination Norm To Defend It, Mark Kelman
San Diego Law Review
We may mean very different things when we say that an actor (the putative defendant in a lawsuit designed to alter the behavior in which he would engage but-for legal intervention) "discriminates" against another person (the suit's putative plaintiff). Recognizing this difference is helpful because it demonstrates that we should be extremely clear in using a term that does not have a single, uncontested meaning. More importantly, it reveals why we have certain norms against private discrimination, particularly in the employment market and a subset of markets in which customers purchase goods and services.
Private Discrimination: A Prioritarian, Desert-Accommodating Account, Kasper Lippert-Rasmussen
Private Discrimination: A Prioritarian, Desert-Accommodating Account, Kasper Lippert-Rasmussen
San Diego Law Review
Most of us would consider a state's discrimination against its citizens-say, by refusing to hire them on account of their sex, race, religion, or ethnicity-clearly unjust, something in urgent need of rectification. Yet we often take a less censorious view of discriminatory acts by private individuals who choose not to share their neighborhood with, associate with, trade with, work with, befriend, marry, or be buried in the same graveyards as people of a different sex, race, religion, or ethnicity. On reflection, this asymmetry is puzzling. It cannot be explained by saying that state discrimination has graver consequences involving more people …
Left Libertarianism: What's In It For Me?, H. E. Baber
Left Libertarianism: What's In It For Me?, H. E. Baber
San Diego Law Review
Left libertarianism cannot effectively promote equal opportunity for well-being. Neither direct distributions from the rent fund nor financial incentives for firms will significantly reduce gross, ongoing discrimination which locks most women into a narrow range of boring, dead-end, pink collar drudge jobs and puts minorities at a disadvantage in hiring, housing, and access to credit. Left libertarianism: What's in it for me? Not much.
The Discriminating Shopper, Michael Blake
The Discriminating Shopper, Michael Blake
San Diego Law Review
This argument proceeds in two parts. Part I attempts to show that there is something special about discriminatory shopping, such that we ought to understand it prior to deriving an overall theory of employment discrimination. Part II then proceeds to analyze the political morality of discriminatory shopping and offers an account of when and how liberalism morally prohibits such discrimination. Part III concludes that such private discrimination is not always contrary to the egalitarian guarantees of liberalism; while there are some cases in which such practices run counter to liberalism's egalitarian guarantees, not all cases of discriminatory shopping have this …
What Is Wrongful Discrimination?, Richard J. Arneson
What Is Wrongful Discrimination?, Richard J. Arneson
San Diego Law Review
Legal prohibition of some types of discriminatory conduct may be morally acceptable even though the conduct being prohibited would not be immoral in the absence of legal prohibition. Consider Thomas Schelling's analysis of patterns of racial segregation in residential housing. If one sees a sharply segregated housing segregation pattern (for example, African-Americans living next to African-Americans, whites living next to whites, and African-Americans living next to whites only at the neighborhoods - edges) even though there is no legal requirement that forces this result, one might suppose that what explains the segregation is a strong desire of almost all members …
Reflections On Discrimination, Alan Wertheimer
Reflections On Discrimination, Alan Wertheimer
San Diego Law Review
In the background are two claims that I want to put on the table. First, although it may be wrong for people to engage in a particular form of discrimination, it does not follow that the government should seek to prevent that discrimination. Second, although it may not be wrong for people to engage in a particular form of discrimination, it does not follow that it would be wrong for the government to seek to prevent that discrimination or to mitigate its effects. The wrongness of individual behavior is obviously related to the justifiability of state action, but the correlation …
Discriminating Shoppers Beware, Dana K. Nelkin
Discriminating Shoppers Beware, Dana K. Nelkin
San Diego Law Review
Such a theory suggests that we need to answer the following question in judging the moral permissibility of discriminatory shopping: Is this act of discriminatory shopping likely to undermine the public equality of our society? To answer this question in turn requires that we check two ways in which public equality could be undermined: first, by people interpreting our actions as sending a message of social inferiority and internalized shame; and second, by exacerbating and amplifying preexisting relationships of injustice.
Is The Privilege Of Private Discrimination An Artifact Of An Icon?, Donald A. Dripps
Is The Privilege Of Private Discrimination An Artifact Of An Icon?, Donald A. Dripps
San Diego Law Review
Most of what Professor Zwolinski says about the three plausible grounds for private discrimination's privileged position seems to me persuasive. I do, however, offer three observations about the prospects of justifying the prevailing distinction. First, as a methodological matter, there are many settled rules and institutions that are, from the standpoint of moral theory, not quite justified by any single normative theory. Second, an attempt to redistribute the goods now distributed by persons exercising the privilege of private discrimination is normatively problematic. Third, the privilege for private discrimination indeed tends to track a widely-felt sense that autonomy has special value …
In Re Blair Misses The Mark: An Alternative Interpretation Of The Bapcpa's Homestead Exemption, Shaun Mulreed
In Re Blair Misses The Mark: An Alternative Interpretation Of The Bapcpa's Homestead Exemption, Shaun Mulreed
San Diego Law Review
Bankruptcy law is wrought with compelling policy tensions, which legislators, judges, and academics must constantly balance. Bankruptcy law seeks to foster a fresh start and promote the rehabilitation of distressed debtors discharged from bankruptcy, while simultaneously ensuring that creditors receive repayment of debts owed to them by debtors. When bankruptcy law focuses too heavily on paternalistic goals providing a fresh start to debtors and fostering debtor rehabilitation both creditors and consumers suffer financially. Every dollar that remains with the debtor in furtherance of a fresh start is a dollar removed from the bankruptcy estate, and thus, a dollar that cannot …
Dignity And Conflicts Of Constitutional Values: The Case Of Free Speech And Equal Protection, R. George Wright
Dignity And Conflicts Of Constitutional Values: The Case Of Free Speech And Equal Protection, R. George Wright
San Diego Law Review
This Article posits a conception of dignity, as expressed through the philosophy of Immanuel Kant (1724-1804), as a useful concept to apply to situations when values from the United States constitution conflict. The concept of dignity is proposed specifically to break stalemates between values of free speech and equal protection. As an example the article reviews the issues raised by various forms of hate speech and the flying of confederate flags at public schools. The Kantian take on the concept of dignity employs condemnation of certain behaviors, such as mocking another person. Thereby as an example, if the behavior in …
The Law And Norms Of File Sharing, Yuval Feldman, Janice Nadler
The Law And Norms Of File Sharing, Yuval Feldman, Janice Nadler
San Diego Law Review
This Article provides a survey of the current status of file sharing in the law. File sharing raises issues of copyright law, harm to sellers of media, and issues of morality (harming another financially) in general. The article addresses the effect that the perception of recording industry greed has on the decision to share files, as well as the perception of legality that the populous at large has about sharing files. The article thus takes both an introspective look at the status of the law regarding file sharing and gauges the current climate of motivations behind the behaviorally driven phenomenon. …
The Role Of News Leaks In Governance And The Law Of Journalists' Confidentiality, 1795-2005, Richard B. Kielbowicz
The Role Of News Leaks In Governance And The Law Of Journalists' Confidentiality, 1795-2005, Richard B. Kielbowicz
San Diego Law Review
When the Supreme Court first grappled with prior restraints and the rights of reporters to attend criminal trials, it looked to history and the societal functions of the media in establishing presumptions that favored the press. This Article follows a similar path. Part II sketches the role of leaks in governance between the adoption of the Constitution and World War II to underscore the integral role leaks have played in the nation's political communication. Part III shows that the general law of journalists' confidentiality before and after Branzburg developed with little regard for the distinct institutional contributions of leaks. Part …
On Art Theft, Tax, And Time: Triangulating Ownership Disputes Through The Tax Code, Anne-Marie Rhodes
On Art Theft, Tax, And Time: Triangulating Ownership Disputes Through The Tax Code, Anne-Marie Rhodes
San Diego Law Review
This Article will examine ways in which the tax code can be used in fashioning settlements between individuals over disputed Nazi-looted art. Part II provides an overview of Nazi-era art looting. Part III examines the income tax charitable deduction as a tool in settling disputes. Part IV explores the theft loss deduction as a possible tool in crafting settlements. Part V discusses the policy ramifications of using the tax code to resolve these private art disputes and proposes allowing a theft loss deduction when Nazi-looted art is returned to the owner.
Recoiling From Religion, Marc O. Degirolami
Recoiling From Religion, Marc O. Degirolami
San Diego Law Review
DeGirolami here reviews a book by Professor Marci A. Hamilton, God vs. The Gavel: Religion and the Rule of Law (Cambridge Univ. Press 2005). This review ultimately critiques Hamilton's notion of "the public good", first explicating the structure and theory of the book. Hamilton was counsel for religious accommodation cases dealing with horrific child abuse and neglect with subsequent failure to act by religious institutions. From these cases she forms in her book the theory that the phrase "free exercise" in the U.S. Constitution does not give constitutional protection for religious exercise in the public square at all, because she …
Keelhauling Pirates: How Ex Parte Seizure Of Non-Interfering Lpfm Does Not Further The Fcc's "Public Interest", Buck Endemann
Keelhauling Pirates: How Ex Parte Seizure Of Non-Interfering Lpfm Does Not Further The Fcc's "Public Interest", Buck Endemann
San Diego Law Review
This Comment describes how FCC regulatory policy has shifted from the "public trust" model to a privately driven approach. Ex parte seizure of non-interfering pirate radio equipment does not match current FCC regulatory theory and works against traditional "public interest" factors. Part III analyzes new FCC policy towards Low Power FM and suggests that the Supreme Court develop fresh precedent to keep pace. Part IV addresses Fourth Amendment concerns by exploring alternate enforcement methods and proposing more reasonable approaches to license enforcement. Finally, Part V analyzes the Due Process implications of ex parte seizures under the Supreme Court's Mathews framework. …
Water, Water Everywhere, And Not A Bite To Eat: Sovereign Immunity, Federal Disaster Relief, And Hurricane Katrina, Nathan Smith
Water, Water Everywhere, And Not A Bite To Eat: Sovereign Immunity, Federal Disaster Relief, And Hurricane Katrina, Nathan Smith
San Diego Law Review
This Comment contends that judicial review should be available to Katrina victims whose injuries arose from failure to receive emergency food supplies. Reviewing the liability landscape in its entirety would require investigation of laws, regulations, and plans on the federal state, and municipal levels. Instead, this Comment focuses specifically on claims that New Orleans residents might pursue against the federal government for its failure to provide adequate food.
In Summary It Makes Sense: A Proposal To Substantially Expand The Role Of Summary Judgment In Nonjury Cases, Jack Achiezer Guggenheim
In Summary It Makes Sense: A Proposal To Substantially Expand The Role Of Summary Judgment In Nonjury Cases, Jack Achiezer Guggenheim
San Diego Law Review
This Article seeks to allow judges to resolve factual disputes where the record is complete more often than judges currently do. The article proposes to distinguish between bench trial cases and jury trial cases. The argument is that in bench trial cases the judge is already going to be adjudicating both the legal and the factual aspects of the case, and if the record is complete, the judge should have the option of exercising summary judgment at an earlier time in the trial. The article notes that summary judgment cannot be used when the credibility of testimony is suspect but …
Assuming Too Much: An Analysis Of Brown V. Sanders, Nicholas A. Fromherz
Assuming Too Much: An Analysis Of Brown V. Sanders, Nicholas A. Fromherz
San Diego Law Review
This Casenote analyzes the majority and dissenting opinions in Sanders in an attempt to determine which Justice, if any, offers and satisfying solution to the problem of death sentences partially based on subsequently invalidated factors. It argues that, while the dissenting opinions leave something to be desired, Justice Scalia's majority opinion is unacceptable because it treats too lightly the real possibility that a jury may choose death due to the role played by a subsequently invalidated sentencing factor. In response, this Note offers an alternate approach-one that would accommodate the needs of judicial economy while simultaneously protecting against the substantial …
Honorable Gerald Brown: A Life Well Lived, David Niddrie
Honorable Gerald Brown: A Life Well Lived, David Niddrie
San Diego Law Review
This Article outlines the accomplishments and contributions of the Presiding Justice of the California Court of Appeal for the Forth Appellate District Gerald Brown, who passed away in December of 2005. Judge Brown graduated from USC Phi Beta Kappa, then from Yale Law School and obtained his M.A. from Oxford on a Rhodes Scholarship. During WWII Judge Brown served briefly with the United States Army, Calvary. He was appointed by Governor Brown to the Fourth District Court of Appeal, and became the Presiding Justice two years later. During his time in the Court of Appeal he focused on efficiency and …
Foreign Extradition, Provisional Arrest Warrants, And Probable Cause, Roberto Iraola
Foreign Extradition, Provisional Arrest Warrants, And Probable Cause, Roberto Iraola
San Diego Law Review
This Article regards what sort of probable cause that a magistrate needs when he issues a provisional arrest warrant, is it probable cause that the person from another country actually committed the crime underlying the extradition request or is it probable cause that the person actually has been charged by a foreign country with a crime? This Article, which is divided into three parts, analyzes the developing case law in this area. First, because the probable cause standard is found in the Fourth Amendment, the Article briefly analyzes how that standard has been applied by the courts in criminal cases. …