Law Commons^™

Plural Agents, Private Intentions, And Legal Interpretation, Scott Soames

The Journal of Contemporary Legal Issues

The chief problem posed in Multimember Legislative Bodies and Intended Meaning is one in which lawmakers pass a tax bill supported by two equal groups with conflicting interpretations of the bill’s content. One believes it taxes imported tomatoes, among other things; the other believes it exempts tomatoes. They disagree because they received supposedly authoritative, but in fact conflicting, information about the meaning of “fruit” in the bill’s text. One group was told it is used with its biological sense, which includes tomatoes as edible seed-bearing reproductive parts of a plant. The other group was told that “fruit” is used with …

Defamation Per Se Cases Should Include Guaranteed Minimum Presumed Damage Awards To Private Plaintiffs, Steven A. Krieger

San Diego Law Review

To combat the reputational harm associated with defamatory comments, forty states allow plaintiffs to recover presumed damages for reputational harm for defamatory statements considered “per se” defamation without having to prove the exact dollar figure associated with their reputational damages. While damages are presumed to a plaintiff’s reputation in a successful defamation per se lawsuit, the spectrum of presumed damages is so wide that there is almost no practical way for a plaintiff to reliably know the size of a presumed damages award, especially a lower-income plaintiff. Plaintiffs cannot evaluate the financial merit of a defamation lawsuit, which removes the …

Noncompetes In A Downsizing World, Charles A. Sullivan

San Diego Law Review

As the nation confronts multiple federal and state attacks on employee noncompetition agreements (“NCAs”), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs.

This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues …

Saving Class Members From Counsel, Jeremy Kidd, J.D., Ph.D., Chas Whitehead, J.D.

San Diego Law Review

The U.S. class action regime is supposed to obtain justice for victims and hold wrongdoers accountable. Instead, the system is filled with pathologies that combine to harm class members and allow defendants to minimize their responsibility. Victims are deprived of their property and due process rights. Adding insult to injury, the modern movement towards cy pres settlements also deprives victims of their free speech rights. Cy pres was borrowed from the law of trusts, but its use in class actions is unjustified. It is leading to greater corruption and collusion, opening the door to significant rent seeking. Most reform proposals …

(Un)Supervised Student Practice, Gillian R. Chadwick

San Diego Law Review

Law student practice is a powerful pedagogical tool that must be wielded judiciously. At its best, student practice coalesces a student’s professional values and prepares that student to become a competent, compassionate, and confident lawyer. However, the current regime of state student practice rules, rooted in the American Bar Association’s (ABA) model rule, undermines the integrity of student practice in several crucial ways. In most states, students are authorized to practice law without meaningful oversight by law schools, and supervisors need not complete any special training. Supervisors are not universally required to accompany students to court, even when students are …

Catch Up Capta: Amending Capta To Guarantee Children Legal Counsel In Dependency Proceedings, Taylor Needham

San Diego Law Review

This Comment will address children’s constitutional right to have legal counsel in dependency proceedings. Dependency proceedings include the entire dependency process, from the moment the child is removed from the parent’s custody until the child returns home or ages out of the foster care system. This Comment will not address the constitutional rights of parents to have legal counsel or the constitutional rights of children in private custody or other family law matters. Nor will it address the type of legal representation that children should receive.

While this Comment argues that all children have a constitutional right to legal counsel …

V.58-3, 2021 Masthead

San Diego Law Review

No abstract provided.

Immigration Detention As An Obstacle To Decarceration, Pedro Gerson

San Diego Law Review

Criminal legal reform and measures to reduce carceral populations have received increasing media and public policy attention nationwide. These efforts have mainly ignored a parallel development: the consistent rise in the use of immigration detention over the last decade. This Article bridges that gap by arguing that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. This argument relies on three different descriptive claims. First, much scholarly work has shown the extent to which vested interests have hampered criminal legal reform; these same interests could look to immigration detention as an alternative protection. Second, the extent …

Public Utilities Commission, Madison Orcutt, Rachel Rockwell, Tristan Stidham, R. C. Fellmeth, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Masthead

California Regulatory Law Reporter

No abstract provided.

Key

California Regulatory Law Reporter

No abstract provided.

V. 12, 2021 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Holding Polluters Accountable In Times Of Climate And Covid Risk: The Problems With “Emergency” Enforcement Waivers, Victor B. Flatt

San Diego Journal of Climate & Energy Law

One of the first actions of the Environmental Protection Agency after the declaration of the COVID-19 crisis in mid-March 2020 was to announce that it would relax its enforcement policies with respect to environmental reporting and violations during the time of the pandemic. Ostensibly this was to ensure that regulated entities were not penalized by their inability to have inspectors on the front lines to ensure that substantive permit and monitoring requirements were followed. Taking their lead from the EPA, many states announced that they were following suit.

EPA always has discretion in terms of enforcement, but in making a …

The World After Teitiota: What The Hrc Decision Means For The Future Of Climate Migration, Lucia Rose

San Diego Journal of Climate & Energy Law

The effects of global climate change is forecasted to cause millions of people to leave their homes and home countries over the next century. Until this point, the current legal framework for determining the fate and protection of people feeling their homes due to emergency was rooted in the United Nations (“UN”) Refugee Convention of 1951 and has been read to exclude those whose primary reason for migration is the effects or threat of climate change. However, the UN Human Rights Committee’s (HRC) January 2020 decision regarding Ioane Teitiota’s deportation to his home nation of the Republic of Kiribati suggests …

Carb V. Climate Change: Regulating California’S Land Use Regime To Reduce Transportation Emissions, William C. Shepherd Iv

San Diego Journal of Climate & Energy Law

California is currently facing two massive problems: climate change and affordable housing. The issues of affordable housing and greenhouse gas emissions intersect in the instance of vehicle miles traveled – the amount of miles driven by Californians in a given amount of time. Local governments have continuously excluded high density housing developments and contributed to rapidly increasing housing costs. As a result, many Californians must travel far distances between work and home. Increased vehicle miles traveled results in increased greenhouse gas emissions. Because local control has contributed to these problems, state regulation of vehicle miles traveled is needed to combat …

From Covid-19 To Climate Change: Disaster & Inequality At The Crossroads, Cinnamon P. Carlarne

San Diego Journal of Climate & Energy Law

This essay explores how the unfolding COVID-19 pandemic exposes and exacerbates structural inequalities in ways that are both obvious and alarming. It suggests that, even as the pandemic worsens inequality it forces us to confront it, and to see how the impacts of climate change will ripple unevenly across existing pathways of disparity.

The essay begins by examining how the COVID-19 pandemic is spotlighting and intensifying inequality and suggests that the vivid harms of the pandemic compel us to do more and do better to address structural inequality. The essay then provides an account of how climate change interacts with …

Judicial Perspectives On Climate Change And The Constitution, Kameron T. Wright

San Diego Journal of Climate & Energy Law

This Comment converges at the intersection of Constitutional Law and Climate Law. It seeks to explore six various jurisprudential perspectives and juridical decision-making models in their application to the modern threat of climate change. Based in some part on Professor Christopher Stone’s seminal work Should Trees Have Standing? and Professor Roy Brooks’ book Structures of Judicial Decision Making from Legal Formalism to Critical Theory, I attempt to provide insight and new lenses by which the legal scholar may view the legal debate on climate change.

I first digest, through six judicial perspectives, a rather important climate law Supreme Court …

There’S Something In The Water: Toxic Exposure Liability Of Public Water Suppliers In The Face Of Near-Universal Pfas Exposure, David Lloyd

San Diego Journal of Climate & Energy Law

California has not experienced the type of willful, large-scale PFAS pollution that states that hosted its manufacture, such as Ohio and West Virginia, have endured. Regardless, the ubiquity of these chemicals in California’s food and water supply, combined with a growing awareness of the serious health risks of PFAS exposure, prompted California to become a nationwide leader in PFAS regulation. In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) “added PFOA and PFOS to the Proposition 65 list of chemicals known to the state to cause reproductive toxicity” without setting a “maximum allowable dose level, below which no …

22-2, 2021 Masthead

San Diego International Law Journal

No abstract provided.

Modern War, Nonstate Actors And The Geneva Conventions: No Longer Fit For Purpose?, Dr. Waseem Ahmad Qureshi

San Diego International Law Journal

Many enduring armed conflicts of the last couple of decades have displaced millions of civilians, giving rise to refugee predicaments around the globe. These wars caused many civilian casualties and the destruction of civilian objects, utterly disregarding the protection offered under the Geneva Conventions. Between the rise in violence and the underlying violations of humanitarian law, the Geneva Conventions have lost their significance. Thus, it must be considered whether the Geneva Conventions matter anymore with regard to their effectiveness and efficiency. If the Geneva Conventions are still relevant, then who is responsible for violations of humanitarian law? Further, when states …

V.58-2, 2021 Masthead

San Diego Law Review

No abstract provided.

The Duties Of Online Marketplaces, Shelly Kreiczer-Levy

San Diego Law Review

Is Amazon a seller for the purpose of product liability law? Is it obligated to stop price gouging by its sellers in the midst of the COVID-19 pandemic? Is Airbnb responsible for discrimination practiced by its users? These legal issues are discussed separately, and courts are typically divided into two camps. Some courts force platforms into unfitting categories such as a seller, a hotel chain, or an employer in order to establish liability; others exempt platforms from liability altogether. This Article argues we need to think of these legal duties holistically, and suggests a new legal category: the market-constituting platform. …

Glory Days: Do The Anticompetitive Risks Of Standards-Essential Patent Pools Outweigh Their Procompetitive Benefits?, John "Jay" Jurata, Jr, Emily N. Luken

San Diego Law Review

This Article proceeds as follows. First, it provides an overview of necessary background principles to understand the interaction between patent pools, commitments to license SEPs on terms that are fair, reasonable, and nondiscriminatory (FRAND), and competition law. Second, it explores how competition law principles traditionally have been applied to SEP patent pools and explores business review letters issued by the U.S. Department of Justice (DOJ) addressing patent pools. Third, it critically examines how some of the assumptions underlying the procompetitive nature of patent pools no longer are true in today’s SEP assertion environment. Fourth, it assesses how the anticompetitive risks …

Pain Speaks For Itself: Divorcing The Eighth Amendment From The Spirit Of The Moment, Benjamin White

San Diego Law Review

This Comment will provide (1) the Eighth Amendment’s original meaning with regard to passive deprivations; (2) the Supreme Court’s shift from wanton and unnecessary infliction of pain to evolving standards of decency; (3) a critique of the evolving standards rule; and (4) a solution that eliminates the evolving standards rule, returns to the question of wanton and unnecessary infliction of pain, and recommends legislative reforms states should make in response.

Consent To Jurisdiction Based On Registering To Do Business: A Limited Role For General Jurisdiction, Jeffrey L. Rensberger

San Diego Law Review

General jurisdiction allows a state to assert jurisdiction over a defendant for any claim, even one having no relationship to events or parties in the state. Consent is one basis for general jurisdiction. Because of the Supreme Court’s recent constrictions of specific and general jurisdiction, plaintiffs are increasingly turning to general jurisdiction based on an out-of-state corporation consenting to jurisdiction by registering to do business in the state. There are several categories of cases in which a plaintiff may find such jurisdiction useful. But an unlimited form of such general jurisdiction is both bad jurisdictional policy and poses constitutional problems. …

"Rule Of Inclusion" Confusion, Dora W. Klein

San Diego Law Review

The purpose of this Article is to examine how federal circuit courts of appeals’ references to the inclusive structure of Rule 404(b) have become counterproductive to a faithful application of the rule. Specifically, characterizing Rule 404(b) as a “rule of inclusion” has led courts to imply that the rule creates a presumption in favor of admissibility. As is discussed in Part II, the structure of Rule 404(b) is inclusive, to the extent that the rule prohibits other acts evidence for the purpose of proving propensity but does not prohibit other acts evidence if offered for another purpose. But as Part …

Protection Of Witnesses And Sensitive Information In U.K. Criminal Prosecutions, Eric Waage

San Diego International Law Journal

This Article examines the film Closed Circuit, as it portrays the legal issues surrounding a British judge’s decision to hold a hearing in camera. As in the United States, holding in camera hearings safeguards the use of witnesses and protects confidential information before it is shared with all parties to a criminal case or the jury. Closed Circuit accurately portrays some aspects of the United Kingdom’s legal standards that govern these hearings including the judicial deference to the Crown’s national security interests, the appointment of cleared special counsel to represent the accused, and the use of pseudonyms to protect …

The United States Ban On Tourism To Cuba, Frank J. Vandall

San Diego International Law Journal

The purpose of this Article is to evaluate the United States ban on Americans’ touring Cuba. This Article begins with the history of the United States’ tumultuous relations with Cuba over the past 60 years, then it explores the specific language of the ban and the reasons presented for it. Additionally, the Article considers the impact of the new law on both the United States and Cuba and concludes with an argument for lifting the ban and returning to the policy of normalization that preexisted the declaration.

Applying The "War On Terror" To The "War On Drugs:" The Legal Implications And Benefits Of Recategorizing Latin American Drug Cartels As Foreign Terrorist Organizations, Madison Standon

San Diego International Law Journal

This Comment analyzes, and ultimately rejects, the proposal for reclassifying Latin American Drug Cartels as Foreign Terrorist Organizations. Section I provides a brief history about the War on Drugs, the ineffectiveness of the policies implemented to combat the War on Drugs, and a brief history about the War on Terror. Section II discusses applicable international and domestic laws, including the Geneva Conventions, international human rights law, U.S. terrorism laws, U.S. drug laws, and U.S. case law. Section III considers whether Latin American Drug Cartels can be recategorized as Foreign Terrorist Organizations under current the current statutory scheme, analyzes how international …

Yes, Chickens Have Feelings Too. The Recognition Of Animal Sentience Will Address Outdated Animal Protection Laws For Chickens And Other Poultry In The United States, Jessica Park

San Diego International Law Journal

The cages on the truck rattle vigorously with every bump and crevice on the road. The sun continues to blaze while a young, oversized chicken barely finds the strength to stand upright. It cannot support its own hormone-induced weight, and it is crammed against the corner after losing a battle with other chickens for more space. Over twenty-four hours have elapsed since its last meal or drink.

Chickens have adapted and grown alongside the development and industrialization of the United States, and their companionship even predates the official creation of the nation itself. The current state of animal welfare legislation …