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Full-Text Articles in Law
Three Strategies Of Interpretation, Adrian Vermeule
Three Strategies Of Interpretation, Adrian Vermeule
San Diego Law Review
We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value the decisionmaker holds). Where decisionmakers choose the action that is best relative to constraints, accounting for the direct costs and opportunity costs of decisionmaking, we may call the approach optimizing rather than maximizing. Whereas the maximizer focuses only on the case at hand, the optimizer acts so as to maximize value over an array of cases. In contrast to both approaches, satisficing permits any decision whose results …
Pursuing Justice For The Mentally Disabled, Grant H. Morris
Pursuing Justice For The Mentally Disabled, Grant H. Morris
San Diego Law Review
This Article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as ?sanism,? which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The Article critiques Perlin?s characterization …
Private Securities Litigation Reform Failure: How Scienter Has Prevented The Private Securities Litigation Reform Act Of 1995 From Achieving Its Goals, Shaun Mulreed
San Diego Law Review
This Comment advocates a purposivist reading of the scienter requirement in private securities litigation. Section II.A of this comment provides an overview of securities litigation and the relevant laws, including the PSLRA. Section II.B illustrates how the core provisions of the PSLRA advantage defendants by comparing the core provisions of the Act to the law as it stood before the PSLRA and to other alternatives available to Congress. Section II.C describes the importance of purposivism in interpreting securities laws. Section II.C concludes that any reading of the ambiguous scienter requirement that favors securities litigation plaintiffs is inconsistent with the crux …
Not A Matter Of Interpretation, Steven Knapp, Walter Benn Michaels
Not A Matter Of Interpretation, Steven Knapp, Walter Benn Michaels
San Diego Law Review
This Article explores the basic question of statutory interpretation. The disagreement among scholars is a theoretical one - it is a dispute about what the proper object of interpretation should be, about whether it should be what Scalia calls "the objective indication of the words" (what the authors said), or whether it should be "the intent of the legislature" (what the authors meant).
Legislative Intentions, Legislative Supremacy, And Legal Positivism, Jeffrey Goldsworthy
Legislative Intentions, Legislative Supremacy, And Legal Positivism, Jeffrey Goldsworthy
San Diego Law Review
In this Article, the Author argues that the debate about the reality of legislative intentions and their utility in statutory interpretation is much more important than is generally realized. Its outcome could affect both the constitutional doctrine of legislative supremacy and the philosophy of legal positivism. Briefly stated, his argument will be that, for practical reasons, skepticism about legislative intentions threatens to undermine the doctrine of legislative supremacy.
Against Interpretation, Miranda Oshige Mcgowan
Against Interpretation, Miranda Oshige Mcgowan
San Diego Law Review
This essay argues that Intentionalism's definition of interpretation entails nothing about the legitimate scope of the judicial rule and commits a judge to no particular method of textual construction. The Author's argument follows in three parts. First, she will set the stage by explaining Intentionalism in greater detail and exploring how Intentionalism challengers lawyers' views of interpretation. Second, she will discuss the role interpretation plays in legal decision making. She will argue that deciding a case under law necessarily includes noninterpretive tasks. Even when it appears that a legal decision entirely depends on a question of statutory meaning, interpretation alone …
Interpretation In Law, Dennis Patterson
Interpretation In Law, Dennis Patterson
San Diego Law Review
Interpretation is a familiar feature of law and legal practice. For some legal theorists, interpretation is a central - even foundational - aspect of law. I argue that interpretation is a parasitic activity in legal practice. In other words, I want to disagree with those who make the case for interpretation as a basic or fundamental feature of law. While interpretation is certainly an important element of legal practice, it is an activity that depends upon existing and widespread agreement among legal practitioners with respect to most features of legal practice. In short, interpretation is not the firmament of law. …
A Synthetic Approach To Legal Adjudication, Samuel C. Rickless
A Synthetic Approach To Legal Adjudication, Samuel C. Rickless
San Diego Law Review
Almost every interesting dispute that arises under the law is the product of disagreement among reasonable and competent speakers of the language of the relevant provision. If the meaning of the provision is not clear, then, even if the facts are fixed, how the judge should proceed is a matter of controversy. The Author offers three main suggestions.
Moderate Versus Strong Intentionalism: Knapp And Michaels Revisited, Jeffrey Goldsworthy
Moderate Versus Strong Intentionalism: Knapp And Michaels Revisited, Jeffrey Goldsworthy
San Diego Law Review
In a series of articles published from 1980 to 1992, literary theorists Steven Knapp and Walter Benn Michaels advocated what the Author calls "strong intentionalism," the thesis that the meaning of a text is identical to the meaning that its author intended it to communicate. At the recent Conference on Legal Interpretation in San Diego, they vigorously defended their thesis. In this Article, the Author argues that their defense of stong intentionalism fails, and that the thesis is false.
Word Meaning In Legal Interpretation, Walter Sinnott-Armstrong
Word Meaning In Legal Interpretation, Walter Sinnott-Armstrong
San Diego Law Review
Professor Sinnott-Armstrong argues against the arguments published by Professor Prakash and Professor Alexander in an article on legal interpretation in which they defended the thesis that all interpretation properly so-called seeks to uncover the intended meaning of the author(s). Against their arguments, the Author defends coherence and importance of word meaning. In Part I, he more precisely defines the these that Alexander and Prakash deny and Professor Sinnott-Armstrong defends. In Part II, he will show why Alexander and Prakash's arguments fail to rule out word meanings. In PArt III, he will put these debates in a larger theoretical context and …
"And My Best Friend, My Doctor/Won't Even Say What It Is I'Ve Got": The Role And Significance Of Counsel In Right To Refuse Treatment Cases, Michael L. Perlin
"And My Best Friend, My Doctor/Won't Even Say What It Is I'Ve Got": The Role And Significance Of Counsel In Right To Refuse Treatment Cases, Michael L. Perlin
San Diego Law Review
For the past three decades, scholars have carefully considered the scope of the right of involuntarily committed psychiatric patients to refuse the administration of medication from a rich array of perspectives, including, but not limited to, clinical perspectives, civil libertarian perspectives, philosophical perspectives, and political perspectives. Yet, virtually all of this - remarkably - passes over what I believe is the single most important issue in real life. This issue is the most relevant to the actual (as opposed to paper) existence of the right and the actual (as opposed to paper) implementation of that right: the availability and adequacy …
A Pluralist Approach To Interpretation: Wills And Contracts, Kent Greenawalt
A Pluralist Approach To Interpretation: Wills And Contracts, Kent Greenawalt
San Diego Law Review
This account of legal interpretation focuses mainly on wills and contracts. It adopts a pluralist approach, one that treats a number of factors as potentially relevant and does not assume that all relevant factors necessarily reduce to one overarching inquiry that is the same whatever legal text is being interpreted.
There Is No Textualist Position, Stanley Fish
There Is No Textualist Position, Stanley Fish
San Diego Law Review
The Author argues that there is no textualist position because there is no candidate on behalf of whom a would-be textualist could argue. He argues that lexical items and grammatical structures by themselves will yield no meaning - will not even me seen as lexical items and grammatical structures - until they are seen as having been produced by some intentional agent. A text whose meaning seems perspicuous and obvious right off the bat is a text for which an intentional context has already been assumed, and it is also a text whose clarity and stability can always be troubled …
Introduction To The 2004 Editors’ Symposium: What Is Legal Interpretation?, Larry Alexander
Introduction To The 2004 Editors’ Symposium: What Is Legal Interpretation?, Larry Alexander
San Diego Law Review
Professor Alexander provides a brief introduction to the 2004 Editors' Symposium titled "What is Legal Interpretation?"
Ip As Conflict Resolution: A Micro View Of Ip, Solveig Singleton
Ip As Conflict Resolution: A Micro View Of Ip, Solveig Singleton
San Diego Law Review
This Article explores the potential conflict between intellectual property and free speech, looking closely at Richard Epstein's paper entitled Liberty versus Property: Understanding the Foundations of Copyright Law. This Article defends Professor Epstein's basic argument, that IP and physical property are essentially linked, and further explores how the linkage relates to some obvious differences between the legal regimes for tangible and intangible property.
Personal Rules And Rational Willpower, Michael E. Bratman
Personal Rules And Rational Willpower, Michael E. Bratman
San Diego Law Review
In this Article the author makes remarks on the rationality of rule following, focusing on the case of committing oneself in advance to a personal rule with an eye to resisting certain temptations. The author discusses why, in this case, it may be puzzling how it could be rational to follow the rule. And he explores two lines of argument for understanding how such rule-following can, nevertheless, be rational.
Is Copyright Property?, Adam Mossoff
Is Copyright Property?, Adam Mossoff
San Diego Law Review
This essay is based on commentary on Richard Epstein's article, Liberty vs. Property: Cracks in the Foundation, which was delivered at a 2003 conference. The essay suggests that the opponents of Epstein's position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that "copyright is policy, not property," this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim …
Introduction To The Symposium On The Rationality Of Rule-Following, Larry Alexander
Introduction To The Symposium On The Rationality Of Rule-Following, Larry Alexander
San Diego Law Review
Legal norms are typically divided into standards and rules. Standards are legal norms that enjoin us to do what is "reasonable," "fair," "just," etc. As legal norms, however, the standards are frequently suboptimal. Legal norms in the form of rules are the antidote to the problems of error and failure of coordination caused by legal standards.
Imposing Rules, Frederick Schauer
Imposing Rules, Frederick Schauer
San Diego Law Review
The majority of the literature on rules is focused on the rule-subject. Yet although the issues surrounding the morality and rationality of rule-following are indeed important, the parallel issues of rule-imposition are no less so. When examining the morality and rationality of rule-imposition, however, we discover structural differences between the standpoint of the rule-imposed and that of the rule-subject, differences that make the morality and rationality of rule-imposition considerably more divergent from the morality and rationality of rule-following than is commonly appreciated. It is just that divergence - the divergence between the perspective of the rule-imposed and the perspective of …
An Original Misunderstanding: Akhil Amar And Fourth Amendment, David E. Steinberg
An Original Misunderstanding: Akhil Amar And Fourth Amendment, David E. Steinberg
San Diego Law Review
The Supreme Court's modern Fourth Amendment decisions rely on two central assumptions about the original understanding of the amendment. First, the Court and most modern commentators have presumed that the Fourth Amendment prefers searches and seizures pursuant to a specific warrant. Second, even where law enforcement activities do not require a warrant, the Court has presumed that the Fourth Amendment imposes a global reasonableness requirement on all searches and seizures. In a series of influential writings, Professor Akhil Amar has advocated a restructuring of Fourth Amendment law, based on a very different account of Fourth Amendment history. Professor Amar writes …
Barnett And The Constitution We Have Lost, Stephen M. Griffin
Barnett And The Constitution We Have Lost, Stephen M. Griffin
San Diego Law Review
This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I …
The Administrative Law Legacy Of Kenneth Culp Davis, Ronald M. Levin
The Administrative Law Legacy Of Kenneth Culp Davis, Ronald M. Levin
San Diego Law Review
Kenneth Culp Davis, one of the twentieth century's outstanding authorities on administrative law, passed away in September 2003. This commemorative essay surveys his manifold contributions to the field. The concept that is most often associated with his name, the distinction between adjudicative facts and legislative facts, is still a crucial reference point in analyses of the right to be heard in judicial or administrative proceedings. His influence has been felt in a number of other areas as well. During the past few decades, for example, administrative adjudication has become more streamlined, rulemaking has become more widely employed, and obstacles to …
Liberty Versus Property? Cracks In The Foundation Of Copyright Law, Richard A. Epstein
Liberty Versus Property? Cracks In The Foundation Of Copyright Law, Richard A. Epstein
San Diego Law Review
The purpose of this Article is to recanvass what is surely old and familiar territory about the defense, if any, that can be made for various forms of intellectual property - in this instance, particularly copyright - as a matter of both natural law and utilitarian theory, broadly conceived. In dealing with this issue, it is important to note that within the Lockean tradition, the function of representative government is to protect the lives, liberties, and estates of the individuals who, as subjects and citizens, are subject to the exercise of state power. Part I of this Article is an …
Making "Lemon-Aid" From The Supreme Court's Lemon: Why Current Establishment Clause Jurisprudence Should Be Replaced By A Modified Coercion Test, Lisa M. Kahle
San Diego Law Review
In order to eliminate inconsistent results and promote predictability in litigation, a more uniform test should be developed and applied in Establishment Clause cases. Part I of this Comment will delineate the inherent problems with the two main tests currently utilized by the Supreme Court in Establishment Clause cases: the Lemon test and the endorsement test. Part II will further highlight the flaws of the Lemon and endorsement tests by examining their application to "holiday display" cases and the recent "Ten Commandments" cases. Part III will argue that applying a modified coercion test is the best means for achieving the …
The Rationality Of Rule-Guided Behavior: A Statement Of The Problem, Scott J. Shapiro
The Rationality Of Rule-Guided Behavior: A Statement Of The Problem, Scott J. Shapiro
San Diego Law Review
In this Article, the author discusses the problem of the rationality of rule-guided behavior. He points our a hidden assumption of the dilemma, which he calls the "autonomy assumption." It holds that people who have adopted rules are free not to follow them. Nevertheless, these people choose to follow the rules each time they deem the rules applicable. Each act of compliance implies choice. His suggestion is that rules operate as constraints on action - one who adopts a rule is constraining his future self to follow it. The rule constrains nonconformity, but it does not compel the intentional action.
Appellate Mediation - "Settling" The Last Frontier Of Adr, Ignazio J. Ruvolo
Appellate Mediation - "Settling" The Last Frontier Of Adr, Ignazio J. Ruvolo
San Diego Law Review
This Article explores several pioneering efforts to settle the last frontier of alternative dispute resolution (ADR): the American appellate judicial process. It begins is Part II with a description of California's historical flirtation with appellate mediation. The effort has blossomed into an enduring relationship producing several permanent, and mature, appellate mediation programs, including in the First District where the Author's own court is located. Part II also discussed the programs implemented by these California sibs, not only to highlight their commonality, but also to illuminate differences. These similarities and differences become important when a critical gaze is cast at the …
Exporting Software Components - Finding A Role For Software In 35 U.S.C. Section 271(F) Extraterritorial Patent Infringement, Steven C. Tietsworth
Exporting Software Components - Finding A Role For Software In 35 U.S.C. Section 271(F) Extraterritorial Patent Infringement, Steven C. Tietsworth
San Diego Law Review
Recent innovations in areas unimagined by previous generations have strained the patent system's ability to accommodate new technologies within the existing legal framework. This Comment explore an example of this problem involving software and proposed a framework for integration of software into a patent system oriented around tangible, physical innovations.
"Random Recollections", John Paul Stevens
"Random Recollections", John Paul Stevens
San Diego Law Review
Justice Stevens shares certain personal memories in this speech given as part of the Nathaniel L. Nathanson Memorial Lecture series at the University of San Diego School of Law on April 7, 2004. It was the 20th lecture in a series honoring Justice Stevens' good friend and former teacher who had a profound influence on his career.