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Articles 1 - 30 of 70
Full-Text Articles in Law
Prometheus Bound Or Loose Cannon? Punitive Damages For Pure Breach Of Contract In Canada, John D. Mccamus
Prometheus Bound Or Loose Cannon? Punitive Damages For Pure Breach Of Contract In Canada, John D. Mccamus
San Diego Law Review
This Article examines the Supreme Court of Canada's punitive damage awards in pure breach of contract cases in recent years. The Supreme Court reaffirmed this development in its recent and leading decision in Whiten v. Pilot Insurance Co. The Court attempted to craft an approach to the awarding of punitive damages that would avoid the worst excesses of the American experience in Pilot Insurance. The author explores whether the Court succeeded in attaining that laudable objective, concluding that the decision disappoints by failing to supply a convincing reason for extending the scope of punitive damages in the contract context beyond …
The Law Of Remedies In The Second Half Of The Twentieth Century: An Australian Perspective, Gary Davis, Michael Tilbury
The Law Of Remedies In The Second Half Of The Twentieth Century: An Australian Perspective, Gary Davis, Michael Tilbury
San Diego Law Review
This Article examines the development of the law of Remedies in Australia during the second half of the twentieth century. The authors look at the general triumph of the compensation principle, the resurgence of equitable compensation, the statutory overlay of the common law, and conclude with issues for the twenty-first century.
Punitive Damages - A View From England, Andrew Tettenborn
Punitive Damages - A View From England, Andrew Tettenborn
San Diego Law Review
This Article explores the English approach to punitive damages. It begins with a brief history of punitive damages in England and a look at where punitive damages are going in the country. Then, the author discusses the criteria for an award and the possibility of punitive damages for break of contract. Other aspects of punitive damages in England explored in the Article include public defendants, liability, judge and jury and the size of punitive awards.
Why Do Emprirical Legal Scholarship?, Theodore Eisenberg
Why Do Emprirical Legal Scholarship?, Theodore Eisenberg
San Diego Law Review
People conduct legal scholarship for many different reasons. This Article focuses on the demand for and reaction to scholarship that helps inform litigants, policymakers, and society as a whole about how the legal system works. The author argues that the need for legally sophisticated empirical analysts is clear.
The Republican Model And Punitive Damages, David F. Partlett
The Republican Model And Punitive Damages, David F. Partlett
San Diego Law Review
Fueled by complaints of outlandish punitive damage awards and a United States Supreme Court intent on bringing constitutional order to this corner of torts damages, a considerable literation has emerged. Commentators have examined the bases for the award of punitive damages and have applied empirical analysis to probe the legitimacy of popular criticism and the extent to which punitive damages fulfill the goals assigned to them. In this essay, I propose that punitive damages should be conceptualized in light of a republican theory of tort law with the jury as its central institution. This is ironic, since influential commentators and …
Introduction: Third Remedies Discussion Forum, Russel L. Weaver
Introduction: Third Remedies Discussion Forum, Russel L. Weaver
San Diego Law Review
Russel L. Weaver provides an introduction to the symposium on the Remedies Discussion Forum. He explains that the papers being submitted in this symposium are "discussion papers" that were submitted by the participants prior to the meeting and formed the basis for the discussions. He goes on to provide a brief introduction for each paper.
Do Punitive Damages Compensate Society?, Michael B. Kelly
Do Punitive Damages Compensate Society?, Michael B. Kelly
San Diego Law Review
This Article focuses on the concept that punitive damages can be justified as a substitute for compensatory damages for harms caused by the defendant to persons other than the plaintiff. The author concludes that punitive damages are a poor device for redressing harms caused to persons not a party to the action. Once punitive damages seek to address concerns beyond the plaintiff and the defendant, they raise a series of problems that defy rationalization. This article urges that we not take punitive damages as so great a good that we run roughshod over dues process in our zeal to preserve …
Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy
Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy
San Diego Law Review
This Article focuses on the third guidepost announced in BMW v. Gore for reviewing whether the amount of punitive damages award is so excessive as to violate due process, specifically, comparing punitive damages to criminal sanctions. Part I of the article examine the Supreme Court's language in several cases about the relevance of criminal sanctions to the question whether a punitive award is constitutionally excessive. It criticizes the Campbell effort to distinguish between civil and criminal penalties under the third guidepost. Part II suggests that the third guidepost, in theory, wrongly constrains courts from imposing sanctions above those created by …
Reforming Reprehensibility: The Continued Viability Of Multiple Punitive Damages After State Farm V. Campbell, Rachel M. Janutis
Reforming Reprehensibility: The Continued Viability Of Multiple Punitive Damages After State Farm V. Campbell, Rachel M. Janutis
San Diego Law Review
In this Article, the author discusses how the Supreme Court's recent decision in State Farm v. Campbell reformed the reprehensibility analysis and how this reformation may have the perhaps unintended consequence of eliminating the practice of awarding total harm damages. In particular, in an effort to limit the size of individual punitive damage awards, Campbell limits the use of evidence of conduct directed at parties not before the court.
Reconceptualizing Aggravated Damages: Recognizing The Dignitary Interest And Referential Loss, Jeffry Berryman
Reconceptualizing Aggravated Damages: Recognizing The Dignitary Interest And Referential Loss, Jeffry Berryman
San Diego Law Review
In this Article, the author argues for the explicit recognition of the "dignitary interest" as a distinct head of damages. In Part I, he analyzes recent decisions of the Supreme Court of Canada that have commented on the availability of aggravated damages. Part II identifies how the protection of dignity lies at the root of awards for aggravated damages. Part III conceptualizes what is encompassed within the "dignitary interest." Part IV contrasts a purely remedial response with those who advocate a new tort action to protect loss of dignity. Finally, the prescriptive power of explicit recognition of the dignitary interest …
Brown Ii's "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid-Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman
San Diego Law Review
In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …
The Rise And Decline Of Structural Remedies, Russell L. Weaver
The Rise And Decline Of Structural Remedies, Russell L. Weaver
San Diego Law Review
One of the most significant remedial developments during the twentieth century was the rise and (partial) decline of the structural injunction in which courts, usually federal courts, restructure or reshape legislative or administrative agencies such as schools or prisons. Structural remedies appear to be inconsistent with the judicial function conceptually. Despite this concern, federal courts have entered structural relief in an extraordinary array of cases that have dramatically reshaped society. This Article examines the structural remedy and offers some reflections on its appropriate use.
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
San Diego Law Review
This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of activist courts and judicial legislation have colored the existing scholarship and portrayed remedial …
"Preliminarily" Enjoining Elections: A Tale Of Two Ninth Circuit Panels, James M. Fischer
"Preliminarily" Enjoining Elections: A Tale Of Two Ninth Circuit Panels, James M. Fischer
San Diego Law Review
In the context of many election challenges, given time constraints involved, preliminary injunctions will be the remedy of necessity for those who seek postponement of the election. This Article examines whether the tests for granting preliminary injunctions are adequate for the task and whether the standards for reviewing district court decisions are sufficient.
Comparing Remedies For School Desegregation And Employment Discrimination: Can Employees Now Help Schools?, Candace Saari Kovacic-Fleishcer
Comparing Remedies For School Desegregation And Employment Discrimination: Can Employees Now Help Schools?, Candace Saari Kovacic-Fleishcer
San Diego Law Review
This Article compares and contrasts the lack of success in desegregating the schools with the greater success in eliminating discrimination from the workplace and suggests that the workplace and schoolhouse can act together for the benefit of both. Part II theorizes that Brown might, in hindsight, have been more successfully implemented and demonstrates why what might have been done earlier probably would not work today. Part III compares the plight of students who have not been helped by Brown with the plight of working parents whose family demands have kept them from sharing fully in the promise of Title VII. …
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
San Diego Law Review
In the Articles that follow, a group of extraordinarily successful legal scholars set out their thoughts on the enterprise of legal scholarship. Their conceptions of that enterprise vary widely. The range of their views, and of course, the very idea of a set of articles on why we write articles, suggests the uncertainty that affects the field. At the same time, most of the authors are reasonably optimistic about the value of scholarship about the law.
Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar
Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar
San Diego Law Review
Looking back on forty-five years of law review writing, Professor Kamisar concludes that, to use George Orwell's words, he has been moved to write by "a sense of injustice" and the need to "expose" "some lie," e.g., the lie that the trial judge or the prosecuting attorney can be counted on to protect the rights of unrepresented defendants. He maintains further that law professors generally should feel an obligation to write because they can think through and research exhaustively any and every problem they meet along the way without worrying about billable hours and they can do so "under working …
Legal Scholarship: A Corporate Scholar's Perspective, Jonathan R. Macey
Legal Scholarship: A Corporate Scholar's Perspective, Jonathan R. Macey
San Diego Law Review
Using Professor Jonathan Macey's own field, corporate law, as its focal point, this Article argues that alternative approaches to legal scholarship, whatever their other merits, do not help connect the law school to other parts of the universities in which they are situated, and in face actually alienate the law school from their more intellectually rigorous campus counterparts.
Legal Scholarship As Resistance To "Science", Steven D. Smith
Legal Scholarship As Resistance To "Science", Steven D. Smith
San Diego Law Review
Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing "Why We Write?", considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the "scientific" worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.
Writing Highs And Lows, Kimberly A. Yuracko
Writing Highs And Lows, Kimberly A. Yuracko
San Diego Law Review
Professor Kimberly Yuracko explores the high and low reasons why academics write. In her opinion, the high reasons seem more noble and pure than the low reasons.
False Endorsement Or First Amendment?: An Analysis Of Celebrity Trademark Rights And Artistic Expression, Joshua Beser
False Endorsement Or First Amendment?: An Analysis Of Celebrity Trademark Rights And Artistic Expression, Joshua Beser
San Diego Law Review
In Part I, this Comment will address both artistic and entertainment industry issues relating to using celebrity names and images in creative works. Part II will discuss the relationship between state right of publicity and privacy claims, and federal trademark law. Part III will discuss the Lanham Act's history and purpose, including its traditional applications and recent amendments. Part IV will address the First Amendment issues raised when creative works use celebrities' names and images. Part V will address the three tests courts use to balance section 43(a) Lanham Act claims and First Amendment rights. Part VI will advocate the …
California's Unfair Competition Law - Making Sure The Avenger Is Not Guilty Of The Greater Game, Mathieu Blackston
California's Unfair Competition Law - Making Sure The Avenger Is Not Guilty Of The Greater Game, Mathieu Blackston
San Diego Law Review
This Comment will discuss the problems underlying California's Unfair Competition Law that eventually led to the adoption of Proposition 64. It will also assess the Proposition's method of addressing those problems, which arose due to the UCL's broad standing provision and lack of res judicata effect. Additionally, this Comment will look at outstanding issues not remedied by the recent amendments to 17200, as well as review recent judicial decisions and evaluate their success at clarifying a law that one California Supreme Court Justice has dubbed a "growth industry."
Raich V. Ashcroft: Medical Marijuana And The Revival Of Federalism, Samantha Everett
Raich V. Ashcroft: Medical Marijuana And The Revival Of Federalism, Samantha Everett
San Diego Law Review
In Raich v. Ashcroft, the Ninth Circuit ruled that the CSA was an unconstitutional exercise of congressional commerce power when applied to citizens who use marijuana that has not traveled interstate and was never intended for interstate or foreign commerce. This Casenote argues that Raich was correctly decided and should be upheld by the Supreme Court on appeal. In addition, the judiciary should continue to narrowly interpret the commerce power in order to further the fundamental purpose of our dual system of government: protection of individual rights. More specifically, courts should apply the reasoning of Raich and narrowly define the …
An Enterprise (No-Fault) Liability Suitable For Judicial Adoption - With A "Draft Judicial Opinion", Virginia E. Nolan, Edmund Ursin
An Enterprise (No-Fault) Liability Suitable For Judicial Adoption - With A "Draft Judicial Opinion", Virginia E. Nolan, Edmund Ursin
San Diego Law Review
In this Article, the authors propose that courts recognize an enterprise liability applicable to persons injured on the premises of supermarkets. In contrast to strict products liability, victim compensation under their proposal would not turn on whether the supermarket's premises could be characterized as dangerously defective. Instead, the proposed doctrine would impose a strict enterprise liability for personal injuries arising out of the use of the supermarket's premises by entrants on those premises. The resulting doctrine would avoid the intractable - and litigation producing - defect problem, while holding down costs - and litigation - by limiting recoverable damages.
Does The Tax Law Discriminate Against The Majority Of American Children? The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education, Lester B. Snyder
San Diego Law Review
Our graduate income tax structure provides an incentive to shift income to lower-bracket family members. However, some parents have much more latitude to shift income to their children than do others. Income derived from services and private business - by far the majority of American income - is less favored than income derived from publicly traded securities. The rationale given for this discrimination is that parents in services or private business, as opposed to those in securities, do not actually part with control of their property. This Article explores these tax broader (yet subtle) tax benefits and their impact on …
Finance And Factionalism: The Uneasy Present (And Future) Of Special Interest Committees In Corporate Reorganization Law, Mary Jo Wiggins
Finance And Factionalism: The Uneasy Present (And Future) Of Special Interest Committees In Corporate Reorganization Law, Mary Jo Wiggins
San Diego Law Review
This Article starts with a general doctrinal introduction to the Bankruptcy Code sections and case law that control the creation and appointment of committees. The Article then provides case studies from four large corporate reorganizations: Enron, Kmart, Global Crossing, and Pacific Gas and Electric. These case studies reveal the wide variety of factual and legal setting in which the appointment of special interest committees can become an important threshold legal issue in bankruptcy law. Finally, the last section of the Article discusses several potential implications from the case studies. Special interest committees, properly constituted and employed, can improve both the …
Foreword, Daniel B. Rodriguez
Foreword, Daniel B. Rodriguez
San Diego Law Review
The Dean and Professor of Law at the University of San Diego School of Law provides an introduction to this volume celebrating the fiftieth anniversary of the law school. He notes that the school is known for major academic contributions to academic debates in at least the following areas: legal theory, constitutional theory and history, and law and economy.
The Jurisdiction Of Justice: Two Conceptions Of Political Morality, Larry Alexander
The Jurisdiction Of Justice: Two Conceptions Of Political Morality, Larry Alexander
San Diego Law Review
My topic in this essay is a major fault line within normative theory. More precisely, it is a major fault line within that part of a normative theory that deals with the content of our moral obligations to others. When I refer to moral obligations here, I am referring to those acts that morality demands of us such that it permits force or its threat to be employed to secure those acts. Moral obligations as I use the term are thus candidates for legal enforcement. I argue that much of what is debated within liberal political/moral theory can be usefully …