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Articles 31 - 60 of 75
Full-Text Articles in Law
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
San Diego Law Review
I will argue that Dick Speidel may have been correct in asserting that court adjustment makes sense in limited circumstances. But years ago, I allied myself with Speidel and I will only briefly review my reasons here. My main goal in this Article is to argue that nothing courts have decided or writers have analyzed since Aluminum Co. of America v. Essex Group, Ins (ALCOA), a somewhat infamous case in which the court adjusted a long-term contract, proves that court adjustment is always wrongheaded. In fact, as with so many policy issues, we may never identify the best judicial approach …
Blowing The Whistle On Mandatory Arbitration: Unconscionability As A Signaling Device, Charles L. Knapp
Blowing The Whistle On Mandatory Arbitration: Unconscionability As A Signaling Device, Charles L. Knapp
San Diego Law Review
This Article is concerned with two areas of American law and their intersection. One is the legal doctrine - which exists in both common law and statutory form - known as "unconscionability." The other is the form of dispute resolution called "arbitration." These would on the face of it seem to be unrelated concepts; unconscionability is generally thought of as part of the law contract, while arbitration is essentially a type of procedure, one a number of mechanisms for settling disputes between private parties. By an accident of legal history, however, the two notions appear to be in the process …
Arbitrator Integrity: The Transient And The Permanent, William W. Park
Arbitrator Integrity: The Transient And The Permanent, William W. Park
San Diego Law Review
The constant movement in arbitrators' lives and activities requires regular adjustment in both formulation and application of contours for acceptable and unacceptable arbitrator behavior. Legal claims should be decided on their merits, rather than according to a predisposition or interest in the outcome. A reasonable measure of arbitrator integrity remains both desirable and attainable. However, in a world of stubbornly heterogeneous legal cultures, each with its own divergent view of proper conduct, elaborating one common ethical plumb line for international arbitration poses special challenges. Fair-mindedness and intelligence remain the most sought after qualities in arbitrators. To reduce the risk of …
The Collateral Source Rule In Contract Cases, Joseph M. Perillo
The Collateral Source Rule In Contract Cases, Joseph M. Perillo
San Diego Law Review
The issue in a collateral source case is: should contract damages be reduced by the amount of payments that the wronged party has received from a third party such as an insurer? This kind of question arises most frequently in tort cases involving property damage, personal injuries, or death, where a doctrine known as collateral source rule has evolved. Under this rule, except where changed by statute, damages assessed against a tortfeasor generally are not diminished by any payments received by the injured party from medical insurance, pension and disability plans, or any sources other than the tortfeasor or the …
Good Faith Revisited: Some Brief Remarks Dedicated To The Late Richard E. Speidel - Friend, Co-Author, And U.C.C. Specialist, Robert S. Summers
Good Faith Revisited: Some Brief Remarks Dedicated To The Late Richard E. Speidel - Friend, Co-Author, And U.C.C. Specialist, Robert S. Summers
San Diego Law Review
Here, in regard to the U.C.C., I will focus, but only in a general way, on U.C.C. section 1-304 - formerly section 1-203 - which imposes a general obligation of good faith. I will also address, but again only in a general way, the Restatement (Second) of Contracts and general contract law dealing with good faith. I will not undertake to provide extended analyses of the U.C.C. or Restatement, nor extended analyses of the case law under the Code or in general contract law.
Evidence And Ideology In Assessing The Effectiveness Of Financial Literacy Education, Lauren E. Willis
Evidence And Ideology In Assessing The Effectiveness Of Financial Literacy Education, Lauren E. Willis
San Diego Law Review
Financial literacy education has long been promoted as key to consumer financial well-being. It is widely embraced as an effective alternative to substantive legal regulation. Yet its effectiveness has never had more than negligible empirical support. This review (1) sets forth the model of financial literacy education subscribed to by policymakers today, (2) identifies pervasive and serious limitations in existing empirical research used by policymakers as evidence of the effectiveness of this education, and (3) recommends a number of alternative public policies suggested by the existing research. Researchers should be particularly cautious in the presentation of their findings, so that …
State Laws For Student Suspension Procedures: The Other Progeny Of Goss V. Lopez, Perry A. Zirkel, Mark N. Covelle
State Laws For Student Suspension Procedures: The Other Progeny Of Goss V. Lopez, Perry A. Zirkel, Mark N. Covelle
San Diego Law Review
In the Supreme Court’s seminal 1975 decision, Goss v. Lopez, the Court held: [D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. In his dissent to the Goss decision, writing on behalf of three other members of the Court, Justice Powell countered: The Court holds for the first time that the federal courts, rather than educational officials and state …
The Hidden Foreign Law Debate In Heller: The Proportionality Approach In American Constitutional Law, Moshe Cohen-Eliya, Iddo Porat
The Hidden Foreign Law Debate In Heller: The Proportionality Approach In American Constitutional Law, Moshe Cohen-Eliya, Iddo Porat
San Diego Law Review
This Article first describes the unique attributes of the use of foreign law in the Heller dissent, and then addresses the soundness of the specific claim that the United States and Europe share the common methodology of proportionality. This Article argues that Justice Breyer was correct in his contention that a doctrinal framework very similar to proportionality is embedded in American constitutional law in the guise of balancing. However, this Article argues that Breyer missed an important divergence between the two doctrines: the significantly different ways in which balancing and proportionality are situated in America and Europe, respectively, owing to …
The Violent Bear It Away: Emmett Till And The Modernization Of Law Enforcement In Mississippi, Anders Walker
The Violent Bear It Away: Emmett Till And The Modernization Of Law Enforcement In Mississippi, Anders Walker
San Diego Law Review
Sometime during the summer of 1955, Emmett Till left the bustling metropolis of Chicago for the quiet pastoral of the Mississippi Delta. Till’s mother had arranged for her son to spend time with his uncle, Moses Wright, who lived in a small town named Money, not far from the sleepy oak-lined streets of Greenwood. Only fourteen, Till knew little of Mississippi’s past or of its strict code of racial conduct, a code that was enforced both legally, through an elaborate system of statutory prohibitions on interracial contact, and extralegally, through vigilante action. Till’s unfamiliarity with local norms made him bold …
“Looking And Feeling Your Best”: A Comprehensive Approach To Groom And Dress Policies Under Title Vii, Elizabeth Malcom
“Looking And Feeling Your Best”: A Comprehensive Approach To Groom And Dress Policies Under Title Vii, Elizabeth Malcom
San Diego Law Review
Employers use groom and dress policies to broadly regulate the appearance of employees, dictating all aspects from the most basic appearance requirements, such as cleanliness and proper attire, down to the minutest details, including hair style, nail length, and even lipstick color. However, when an employer differentiates between male and female employees in appearance policies, the employer runs the risk of violating Title VII, a federal statute that prohibits sex discrimination in the workplace. Title VII was enacted to eradicate the discriminatory treatment of men and women resulting from sex stereotypes, and to eliminate the traditional obstacles faced by women …
“Let’S Do The Time Warp Again”: Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
“Let’S Do The Time Warp Again”: Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
San Diego Law Review
Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" …
Motions 2009 Volume 44 Number 6, University Of San Diego School Of Law Student Bar Association
Motions 2009 Volume 44 Number 6, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Motions 2009 Volume 44 Number 5, University Of San Diego School Of Law Student Bar Association
Motions 2009 Volume 44 Number 5, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo
Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo
San Diego International Law Journal
This paper aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual "constitutionalization" of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of "We the People" as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. The paper …
Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John Cerone
Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John Cerone
San Diego International Law Journal
Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? While the repression of crime, especially that perpetrated by non-state actors, has traditionally been left to the internal law of states, most international jurists will point to the ancient rules of international law …
The Political Economy Of Hong Kong's Open Skies Legal Regime: An Empirical And Theoretical Exploration, Miron Mushkat, Roda Mushkat
The Political Economy Of Hong Kong's Open Skies Legal Regime: An Empirical And Theoretical Exploration, Miron Mushkat, Roda Mushkat
San Diego International Law Journal
Hong Kong has generally followed a libertarian path on the external economic front, maintaining a widely open trade and investment platform. Its policy regarding the now well-established "open skies" system qualifies as something of an aberration, albeit obviously not to the same extent as its far more inward-looking immigration strategies. This pattern can effectively be placed in the appropriate theoretical context and the territory’s experience in that respect may offer relevant analytical insights into the evolution of international legal regimes, particularly those with a distinct regulatory focus and essentially bilateral in nature.
Repatriating Cultural Property: The Dispute Between Yale And Peru Over The Treasures Of Machu Picchu, Stephanie Swanson
Repatriating Cultural Property: The Dispute Between Yale And Peru Over The Treasures Of Machu Picchu, Stephanie Swanson
San Diego International Law Journal
The repatriation of cultural property is a controversial issue throughout the world, creating a sharp divide between states with a wealth of antiquities, such as Greece or Peru, and states which, lacking such extensive cultural property, have nonetheless built international museums housing the patrimony of other nations. The conflict surrounding the proper ownership of the Elgin marbles, probably the most famous dispute over cultural property, is but one example of many. In recent years, calls for the repatriation of cultural property have become increasingly common, involving world famous museums such as the Metropolitan Museum of Art and the J. Paul …
Is Labor Really Cheap In China - Compliance With Labor And Employment Laws, Marisa Anne Pagnattaro
Is Labor Really Cheap In China - Compliance With Labor And Employment Laws, Marisa Anne Pagnattaro
San Diego International Law Journal
This Article details China’s the growing body of labor and employment laws. Specifically, this research analyzes major labor and employment law developments in China, including the newly adopted Labor Contract Law, employment discrimination sexual harassment, wages, workplace health and safety, worker privacy, and dispute resolution. The ramifications of this developing legal landscape on U.S. companies doing business in China are also discussed.
Revisiting The Thames Formula: The Evolving Role Of The International Maritime Organization And Its Member States In Implementing The 1982 Law Of The Sea Convention, Craig H. Allen
San Diego International Law Journal
Despite the findings that marine casualty rates have "plummeted" and the safety record of the oil transport industry has "significantly improved," high visibility pollution incidents in the last decade like those involving the tankers Erika and Prestige off the coast of Europe, together with the chronic problems of illegal and unregulated fishing and dismal labor conditions for many seafarers led a United Nations-chartered consultative group of leading international organization representatives to conclude that there is an "urgent" need to improve State performance in the implementation and enforcement of the international maritime legal regime. There is less agreement, however, in how …
With Great Power Comes Great Responsibility: Korea's Role In The War Against Online Piracy, Edward Choi
With Great Power Comes Great Responsibility: Korea's Role In The War Against Online Piracy, Edward Choi
San Diego International Law Journal
South Korea is one of the most Internet-savvy countries in the world, with more than 34 million Koreans over the age of six—74.8% of the total population—regularly accessing the Internet. According to the Organization for Economic Co-operation and Development (OECD), as of June 2007, South Korea has the fourth largest number of broadband subscribers at over 14.4 million, behind only Japan, Germany, and the United States, all of which have much higher populations. Studies show the time Koreans spend online is primarily for entertainment purposes, as almost 80% of Korean Internet users report online consumption of audio and video, almost …
Global Crisis Writ Large: The Effects Of Being Stateless In Thailand On Hill-Tribe Children,, Joy K. Park, John E. Tanagho, Mary E. Weicher Gaudette
Global Crisis Writ Large: The Effects Of Being Stateless In Thailand On Hill-Tribe Children,, Joy K. Park, John E. Tanagho, Mary E. Weicher Gaudette
San Diego International Law Journal
According to the United Nations High Commission for Refugees (UNHCR), "[n]o region of the world has been left untouched by the statelessness issue." International law defines a stateless person as someone "who is not considered as a national by any state under the operation of its law." Yet across the nations, stateless persons do not desire citizenship simply for the sake of citizenship. Ultimately, citizenship, or membership in a nation, provides a link between an individual and that nation and carries with it fundamental benefits and rights. Correspondingly,lack of citizenship translates into a denial of benefits and rights, including basic …
Development Of Ukrainian Real Property And Mortgage Law: The American Perspective, Zhanna Bulkina
Development Of Ukrainian Real Property And Mortgage Law: The American Perspective, Zhanna Bulkina
San Diego International Law Journal
Modern Ukrainian commercial law started to develop following the break-up of the Soviet Union in August 1991 and the reemergence of Ukraine as an independent democratic state. As a result of the break-up, in 1991 the new state of Ukraine inherited the jurisprudence, institutions and government of the former Ukrainian Soviet Socialist Republic. While Ukraine quickly shed its Soviet past by changing the communist names of streets and institutions, the transition was not as easy when it came to substantive changes in Ukrainian jurisprudence and legal thinking. Ukraine needed to develop its own system of law to establish an open …
Motions 2009 Volume 44 Number 4, University Of San Diego School Of Law Student Bar Association
Motions 2009 Volume 44 Number 4, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
San Diego Law Review
This Article is a follow-up to a previous article, Networks of Fairness Review in Corporate Law (Fairness). After an overview of the fundamentals of the fairness standard and network theory, Fairness deployed network and statistical analyses to conduct an empirical study of the fairness doctrine as articulated by the Delaware Supreme Court and the Delaware Court of Chancery. This initial analysis focused on the fairness standard for one principal reason: it is considered to be the most plaintiff-friendly standard of review, in marked distinction to the well-known business judgment rule (BJR). But there are also four other prominent standards of …
Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, And The Fourth Amendment, Dora W. Klein
Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, And The Fourth Amendment, Dora W. Klein
San Diego Law Review
Part I of this Article discusses the legal protections against involuntary medical treatment. In the typical right to refuse treatment case, a patient’s interests are divided—the patient’s interest in autonomous decisionmaking about his health requires that he be allowed to refuse medical treatment but the patient’s interest in preserving his health, and perhaps even his life, requires that he be administered involuntary treatment. Generally, when a patient chooses to refuse treatment at the expense of his own life or health, courts have ruled that the government’s interest in preserving the patient’s life or health is insufficient to justify involuntary treatment. …
Moving Beyond Animal Rights: A Legal/Contractualist Critique, Richard L. Cupp Jr.
Moving Beyond Animal Rights: A Legal/Contractualist Critique, Richard L. Cupp Jr.
San Diego Law Review
This Article asserts that shifting the focus of animal welfare issues from human responsibility to animal rights provides a singular illustration of overburdening the rights paradigm. Shifting focus away from human responsibility for animals' welfare is harful both for animals and for human society. Part II of this Article addreses the rights paradigm's expansion in societal discourse. It documents the increasing attractiveness of rights language over the past sixty years and explores the foundations for this "romance" with the more-is-better view of rights. Part II confronts rising calls to assign basic rights to animals. Part IV asserts the centrality of …
Sprawl In Europe And America, Michael Lewyn
Sprawl In Europe And America, Michael Lewyn
San Diego Law Review
This Article compares Western Europe to the United States and finds that: (1) Europe is far less automobile-dependent than the United States; and (2) to the limited extent that Europe has sprawled, European governments’ pro-sprawl public policies may be partially to blame. It logically follows that the Inevitability Theory is simply wrong—sprawl can be, and in fact has been, limited in the affluent societies of Western Europe. Part II of this Article shows that European nations in fact sprawl less than the United States in a variety of ways. Europeans walk, bike, and use public transit far more than Americans. …
“Corrective” Surgery And The Americans With Disabilities Act, Jeannette Cox
“Corrective” Surgery And The Americans With Disabilities Act, Jeannette Cox
San Diego Law Review
This Article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo corrective surgery as a precondition to membership in the ADA's protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the corrective surgery issue, will unsettle the current doctrine underpinning many courts' conclusions that an individual's decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA's focus on reshaping cultural responses to disability suggests that individuals need …