Law Commons^™

Another Shot At Rectifying The District Of Columbia V. Heller Ambiguities: The Constitutional Right To Arms, The Nonconstitutional Right To Arms, And The Commerce Clause, Noah Gaarder-Feingold

San Diego Law Review

In an article for The New Yorker titled Active Shooter, David Sedaris quipped that, in preparing for the potential that a psychopath might break into his home, he would just as soon have a back door as a gun. Sedaris wrote the article after visiting a shooting range in North Carolina. Before, during, and after the writing of the article, Sedaris lived in the United Kingdom and noted that in the United Kingdom, it is nearly impossible to acquire a handgun let alone fire a handgun for sport.

Conversely, in the United States, a citizen has a right to a …

Reply To “How Foot Voting Enhances Political Freedom”, James Allan

San Diego Law Review

My job is to comment briefly on Ilya Somin’s Article, How Foot Voting Enhances Political Freedom. Of necessity, then, I will be selective. The thrust of the Article—which appears to be an excerpt from an upcoming book—is that “ballot box voting” compares unfavorably to “foot voting.” The terms are Somin’s, not mine. The former phrase refers to what we would normally just call “voting.” The latter refers to what would normally fall under the aegis of migration, immigration, emigration, or even moving to another jurisdiction. And when we compare those two alternatives—voting in a democratic election and picking up one’s …

How Foot Voting Enhances Political Freedom, Ilya Somin

San Diego Law Review

To the extent we value political freedom in any significant sense, we should also assign a high value to foot voting. Freedom of choice through foot voting, and the freedom of movement that make it possible, cannot be absolute principles that always trump other considerations. But there should be at least a substantial presumption in their favor.

My analysis also emphasizes the fundamental similarity between three different types of foot voting that are usually considered to be very different from each other: interjurisdictional foot voting in federal systems, foot voting through international migration, and foot voting in the private sector. …

Points Of Crisis Or, Is It All Over?, Maimon Schwarzschild

San Diego Law Review

Various European democracies, and others with at least the beginnings of liberal institutions, collapsed—and yielded to fanaticism and tyranny—in the twentieth century in the wake of defeat in war, economic depression, hyperinflation, and in the face of violence from within and from without. Perhaps it is too Spenglerian to suggest that the present sources of democratic crisis—such as, no doubt among others, the growth of bureaucratic power, the erosion of free expression especially in the institutions that should foster it, and the growth of ideological tribalism and political odium—might actually bring down liberal institutions in America, or similarly elsewhere. But …

The Unreasonableness Of Catholic Integralism, Micah Schwartzman, Jocelyn Wilson

San Diego Law Review

In this symposium contribution, we argue that Catholic integralism is unreasonable. Our conception of reasonableness is defined in terms of substantive moral and epistemic commitments to respecting the freedom and equality of citizens who hold a wide—but not unlimited—range of religious, ethical, and philosophical conceptions of the good. In arguing that Catholic integralism conflicts with this understanding of reasonableness, it might seem that we are begging the question against integralists. But our purpose here is not to engage integralists on their own terms. So far, the debate about integralism has been conducted mostly among Catholics and Christian conservatives. Our critique …

What, If Anything, Is Wrong With Gerrymandering?, Niko Kolodny

San Diego Law Review

…While some of the concern about gerrymandering is concern about the results that it leads to, some of the concern is that it is itself somehow objectionable—that it is undemocratic or unfair or foul play or what have you. If there is such an objection to incumbent protection gerrymandering, my best guess is that it violates conditions of proper representation or that it is corrupt. If there is such an objection to racial gerrymandering, my best guess is that it is wrongfully discriminatory. And if there is such an objection to partisan gerrymandering, my best guess is that it exploits …

What Might Democratic Self-Governance In A Complex Social World Look Like?, Gerald Gaus

San Diego Law Review

The crisis facing democratic self-government is first and foremost a crisis of self-governance, not of democracy.

Section II reviews the nature of complex systems and why our contemporary social and economic order qualifies as technically complexindeed, increasingly so—and why explicit overall, directed reform of our social world is hopeless. But hope is not easily abandoned: Section III critically looks at two continuing sources of hope. Section IV then turns to a critical issue: If not by central direction, how do such complex systems achieve orderliness and functionality? Section V turns to the heart of the matter: is democratic self-governance viable …

Reply To “Democracy, Participation, And Information: Complementarity Between Political And Economic Institutions”, Christopher Wonnell

San Diego Law Review

As I see it, Thomas Christiano’s Article on democracy and complementarity has two purposes. One is to defend democracy against the charge that it cannot work because of the rational ignorance of the citizenry. The other is to propose a way of making democracy work better by changing the economic system in such a way as to give workers access to more of the information they need to become informed voters. Discussion of opinion will take place in the following pages.

Democracy, Participation, And Information: Complementarity Between Political And Economic Institutions, Thomas Christiano

San Diego Law Review

In this Article, I will first lay out what I describe as the crude Downsian approach to political democracy and the skepticism about democracy that this has generated. Then, I will lay out some basic problems with this approach and show how the skepticism is not warranted. I will then embark on the task of developing an alternative Downsian approach to political democracy that I think is truer to Downs’s view and that is more sophisticated and interesting. This will include a brief sketch of motivation, and an account of the economics of information in politics. I will then try …

Reply—And Gentle Dissent—To Michael Blake’S “Democracy And Deference”, Maimon Schwarzschild

San Diego Law Review

Michael Blake’s interesting and obviously heartfelt Article expresses the apprehension that many, if not most, of us feel that democratic life and institutions are under stress, even in danger of failing; and Blake wants to be fair, or at least to gesture at fairness, in accounting for the problems and in his prescriptions for what to do about it. Yet, his suggestions are deeply at odds, I believe, with any viable democratic future, and—a little sadly —they illustrate how wide the gap is now, or the gulf, between the political cultures or tribes within our very divided society. One thing …

Democracy And Deference: Or, Why Democracy Needs People Who Know How To Shut Up And Listen, Michael Blake

San Diego Law Review

The charge for this conference asked us to consider the future of liberal democracy given the challenges it presently faces. Two challenges in particular give me pause:

First, the issues that are most in need of governance are now happening at the transnational level. We face the possibility of an altered climate due to increased carbon emissions; increased political turbulence due to increased migration flows, including a resurgence of refugees and, of course, increased resistance to refugee admissions; and increasingly complex international processes for both the production of goods and the movement of capital. None of these issues can be …

Reconsidering Nondemocratic Political Regimes, Richard Arneson

San Diego Law Review

Asking what the best feasible political governance system for a country at a time is admits of different interpretations, depending on the gloss we are placing on “feasible.” We might be thinking of the best feasible system as the best system that could be installed, in present circumstances, if a set of people sufficient to bring about the shift could be convinced to team up to effect it. A more restricted feasibility question would be posed if we asked instead, taking for granted the actual beliefs and attitudes and their entrenchment in the present members of society now, what is …

A Churchillian And Benthamite Defense Of Democracy, James Allan

San Diego Law Review

In this Article, I am going to defend democracy against those Cassandras who are pessimistic, even in a comparative sense, about its capabilities and worth. I expect that many of those pessimists about democracy will think me something of a Pollyanna, all too inclined to see the world through rose-colored spectacles that transmogrify what the Cassandras perceive as the three-quarters empty glass into what I claim is a three-quarters full one. So, let me be blunt right from the start. Mine will be a least-bad or Churchillian defense of democracy, one that readily concedes that democratic decision-making has its flaws …

V.56-4, 2019 Masthead

San Diego Law Review

No abstract provided.

Keynote Address At The Institute For Civil Civic Engagement’S Eighth Annual Conference On Restoring Civility To Civic Dialogue: Restoring Respect, Tani G. Cantil-Sakauye, Carl Luna

San Diego Law Review

Keynote Address at the Institute for Civil Civic Engagement’s Eighth Annual Conference on Restoring Civility to Civic Dialogue: Restoring Respect

Pregnant And Scared: How Nifla V. Becerra Avoids Protecting Women’S Reproductive Autonomy, Savannah R. Montanez

San Diego Law Review

This Note analyzes the Court’s determination that the Licensed Notice did not fit into either exception. Part II of this Note provides a brief overview of CPCs and how the FACT Act was designed to curb CPCs’ interference with women’s reproductive autonomy. Part III discusses the litigation between NIFLA, the CPCs, and California, culminating in a controversial 5–4 decision in the Supreme Court. Next, Part IV argues that even if the Court wanted to limit the circumstances wherein professional speech received diminished scrutiny, it could have fit the Licensed Notice into its newly-delineated exceptions. This Note ultimately questions why the …

Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti-Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Reiss, John Diamond

San Diego Law Review

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harm, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts—appropriately— narrowed the tort to protect freedom of speech and the flow of information. This Article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of …

Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan

San Diego Law Review

This Article argues that the Court’s recent decisions have effectively revived Pennoyer’s focus on physical presence and status, at the expense of the fairness and contact considerations set forth in International Shoe, as the bases for asserting personal jurisdiction. Part II details the jurisdictional analysis under both Pennoyer and International Shoe. Part III discusses the evolution of personal jurisdiction doctrine under International Shoe. Part IV demonstrates that the Court’s recent decisions have revitalized Pennoyer’s territorially based regime, and consequently diminished the thrust of International Shoe.

To Exempt Or Not Exempt: Religion, Nonreligion, And The Contraceptive Mandate, Sarah Kim

San Diego Law Review

In an attempt to help mitigate the difficulties courts are experiencing with the Contraceptive Mandate, this Comment proposes a uniform factors test that courts can use in their equal protection analysis to define a deeply and sincerely held religious belief and determine whether religious and nonreligious organizations are similarly situated. To demonstrate the necessity of a uniform factor test, this Comment starts by providing the history of the Affordable Care Act and the Contraceptive Mandate and exploring the religious exemptions created in response to the Contraceptive Mandate in Part II. Part III elaborates the current circuit split on the issue …

Engineering Pass-Throughs In International Tax: The Case Of Private Equity Funds, Young Ran (Christine) Kim

San Diego Law Review

Fund investment, or indirect investment, does not entail entity-level taxation domestically, so investors enjoy “tax neutrality” between direct and indirect investments made within a country. In contrast, when investments are made across borders, tax neutrality cannot be guaranteed because current international tax regimes are built upon bilateral tax treaties and lack pass-through tax rules for multinational fund investment schemes. This may put investors in a worse tax position than had they invested directly.

In response, investors have created many strategies to reduce tax liabilities internationally when investing indirectly. Sometimes those strategies enable investors to pay even less taxes than they …

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

V.56-3, 2019 Masthead

San Diego Law Review

No abstract provided.

Introduction To The Symposium, Steven D. Smith

San Diego Law Review

Introduction to the Symposium

Is Modern Paganism True?, Anthony T. Kronman

San Diego Law Review

Anthony T. Kronman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Jews, Not Pagans, Richard Schragger, Micah Schwartzman

San Diego Law Review

Richard Schragger & Micah Schwartzman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Pagans, Christians, And Student Protesters, Stanley Fish

San Diego Law Review

Stanley Fish’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand

San Diego Law Review

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political, and ideological realignments, generating new alliances across political and faith communities.

In this new environment, both …

Christians And Pagans In The Sacred Nation, Christopher J. Eberle

San Diego Law Review

Christopher J. Eberle’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Paganism Is Dead, Long Live Secularism, Samuel C. Rickless

San Diego Law Review

Samuel C. Rickless’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

V.56-2, 2019 Masthead

San Diego Law Review

No abstract provided.