Law Commons^™

V.55-2, 2018 Masthead

San Diego Law Review

No abstract provided.

The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander

San Diego Law Review

I was not certain I was going to write something for this symposium. After all, I had written a lot on the topic of self-defense, so what was there left to say that I had not said before? I have concluded, however, after reading a new generation of literature on self-defense, that most who write on the topic neglect its perhaps most important aspect, namely, that it is a preemptive action. As a preemptive action, self-defense perforce takes place before the attack to which it is a response occurs. This preemptive aspect of self-defense brings with it a nest of …

Unwitting Justification, Peter Westen

San Diego Law Review

An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” By its terms, Jones is guilty of an impossibility attempt under the Model Penal Code because he satisfies all the elements of attempted murder under the Code. The question, which has divided commentators since George Fletcher and Paul Robinson’s debate in the 1970s, is whether Jones is also guilty of the completed crime of murder and whether the latter is the more …

Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson

San Diego Law Review

Under what conditions is it morally permissible to kill someone in order to save your own life—or the life of another who is threatened? There seem to be clear cases. Threatened by an assailant who is trying to kill you for no good reason, you may use lethal force if necessary to save yourself from death or serious injury from the assailant’s attack. Threatened with death in the form of an onrushing runaway truck, you may not save yourself by using a bystander or imposing on a bystander in a way that inflicts severe harm on her. In a justly …

Replies, Uwe Steinhoff

San Diego Law Review

Many philosophers who write on self-defense tend to ignore the self-defense discussions offered by legal scholars, and accordingly they often ignore the law or pay insufficient attention to it. In my experience, this attitude stems from a misperception of legal scholarship as some kind of positivistic interpretation of legal documents and as positive law being irrelevant for deciding what the morally right answer to the issues raised by self-defense are. I find this attitude deplorable because legal scholarship, especially in the field of criminal law, is more often than not straightforward moral philosophy; and criminal law especially gives expression to …

Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons

San Diego Law Review

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation.

First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private …

Steinhoff And Self-Defense, Michael S. Moore

San Diego Law Review

I shall first describe what moral combat would be if it existed, separate it into distinct species, and say why it is so undesirable that one should be brought to acknowledge its existence only reluctantly and as a last resort. I will then detail two ways in which rights to do things—often called “action rights” or “active rights”—such as the right to defend oneself, are integrated into standard deontic logic: (1) Hohfeld’s way and (2) the older but still popular Kantian alternative that Hurd and I recently defended. The first of these is compatible with—indeed, inviting of—moral combat, whereas the …

The Right To Cause Harm As An Alternative To Being Sacrificed For Others: An Exploration Of Agent-Rights With A Special Focus On Intervening Agency, Alec Walen

San Diego Law Review

My strategy for defending the right of non-sacrifice and the connected agent–patient inference is to move through a series of cases, starting with easy cases—clearly permissible acts of non-sacrifice—and moving to more controversial ones. The controversial cases are those in which intervening agency is central to explaining why an agent should have the right of non-sacrifice. My argument will not simply be an attempt to explain intuitions. I take the intuitions on the easy cases to be reliable, but once we move to controversial cases, I think moral intuitions become unreliable. My argument fundamentally trades on two thoughts: (1) there …

The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak

San Diego Law Review

The burgeoning self-defense literature, like that in most areas of moral and legal philosophy, typically begins with and seeks to rationalize our intuitions. I submit that the intuitive judgment of virtually all respondents, at least initially, is that IV is permitted to exercise her right of self-defense, however futile, and scratch WA. This intuition, I believe, is incredibly powerful and robust; I certainly have it myself. Yet quite a few philosophers and legal theorists contend IV is not permitted to employ futile self-defense against WA. Presumably, they believe IV must passively accept her fate without injuring WA. Why hold this …

The Nature Of Self-Defense, Samuel C. Rickless

San Diego Law Review

What is self-defense? Most theorists of self-defense are mainly interested in explaining why and when we are morally justified in defending ourselves from a threat posed by another. The moral questions here are important, not just because self-defense represents an interesting moral conundrum, but because morality, at least in this case, is, or should be, a reliable guide to the law. So theorists of self-defense often start with paradigm cases—the culpable aggressor, the justified aggressor, the innocent aggressor, the innocent threat, and so on—and try to explain moral intuitions about them with the help of moral theory, whether Hohfeldian, utilitarian, …

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

San Diego Law Review

Assume Culpable Aggressor threatens Innocent Victim with a knife. Victim is stronger than Culpable Aggressor and is able to defend herself by punching Culpable Aggressor in the face, causing him to stumble back and drop the knife. Not only was this action necessary, but also Victim believed it to be so to save her life.

I take it that this is an uncontroversial case of self-defense. My question is whether this is also a case of punishment. Uwe Steinhoff suggests that it might be. Indeed, he states that “nothing hinders an act from being both punitive and defensive. In fact, …

Poor Wesley Hohfeld, Peter Westen

San Diego Law Review

John Wesley Hohfeld has lost one audience and gained another in the century since he published his seminal Fundamental Legal Conceptions in 1919. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him enthusiastically. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely nowadays in moral theory regarding war and self defense without coming across supportive references to Hohfeld. Unfortunately moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe …

Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Medical Board Of California, Kayla Watson, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Contractors’ State License Board, Mayra Castro, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver

San Diego Law Review

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral …

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is …

V. 55-1, 2018 Masthead

San Diego Law Review

No abstract provided.

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity …

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …

Foreword, Christina M. Nielsen

San Diego International Law Journal

The overwhelming reoccurring theme in this nineteenth edition of the San Diego International Law Journal centers on the international effects of recent domestic political changes in the United States. Whether a compelling factor or working in the background without express recognition, President Trump remains a point of interest in many of the articles published this academic year. Each article is distinct in legal policy and analysis and covers diverse legal topics.