Law Commons^™

Toward A Lockean Moral Justification Of Legal Protection Of Intellectual Property, Kenneth Einar Himma

San Diego Law Review

This Article attempts to provide the beginnings of a viable moral justification for recognizing and providing legal protection of intellectual property. The argument follows a line of arguments that is fairly characterized as “inspired” by John Locke’s attempt to justify legal protection of what he took to be a natural, objective, moral right to material property. That is to say, it is Lockean in spirit in the following sense: Locke grounds his argument for original acquisition in the idea that a person is justified in acquiring something from the commons in virtue of an investment he makes of something that …

On Cowbells In Rock Anthems (And Property In Ip): A Review Of Justifying Intellectual Property, Eric R. Claeys

San Diego Law Review

I am going to start this Article with two confessions. First, when I was fourteen, my favorite rock song was (Don’t Fear) The Reaper, by Blue Oyster Cult. Second, one of my favorite Saturday Night Live (SNL) sketches is from the 2000 season, “Behind the Music: Blue Oyster Cult.” The sketch is a tribute in memory of Gene Frenkle, the member of Blue Oyster Cult who played the cowbell on (Don’t Fear) The Reaper. The SNL sketch purports to explain how the cowbell made it onto the studio recording. In the sketch, members of the regular SNL cast pretend to …

Access And The Public Domain, Randal C. Picker

San Diego Law Review

[T]his Article sketches out the emerging public domain. Part III considers three conceptual questions for structuring use of the public domain, focusing on the extent to which the public domain should be viral; on whether we should insist that the public domain be accessed only through the original artifacts embodying it; and on whether private appropriability incentives for distribution of public domain scans match overall social interests. Part IV turns to the tools for restricting use of the public domain, to copyright, contract, the DMCA, and the CFAA. Each of these matters for access to the public domain and for …

Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes

San Diego Law Review

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

The Relationship Between Foundations And Principles In Ip Law, Robert P. Merges

San Diego Law Review

In my book Justifying Intellectual Property (JIP), I wrote about what I call the “foundations” of the field of intellectual property (IP) law. I tried to distinguish between a foundational level of discourse and another level, the level of basic principles. In the San Diego conference at which my book was discussed—and in several other settings as well—the most frequent and persistent line of questioning about my book centered on the relationship between these two levels. That is what this brief Article is about.

A Lockean Theory Of Intellectual Property Revisited, Adam D. Moore

San Diego Law Review

The primary, and perhaps sole, function of government according to Locke was to secure and protect the lives, liberties, and property of individuals who consented, explicitly or tacitly, to a specific political union. The question that I will address in this Article, and one that I took up over fifteen years ago, is: should we consider intellectual works to be the proper subjects of Lockean property claims? My answer then and now is “yes,” with the acknowledgement that such a view may require substantial revisions to Anglo-American systems of intellectual property. I will argue that intellectual property rights are no …

Managing The Intellectual Property Sprawl, Shubha Ghosh

San Diego Law Review

Professor Merges, despite the centrality of creative persons to his argument, organizes a set of ideas that are conducive to refocusing intellectual property law on users. I present this user-focused argument in this Article through the following five Parts. Part II explains my suggested approach to questions about the design of intellectual property law—an approach based on the new institutional economics and the work of Ronald Coase. Part II also addresses objections to this approach. Part III identifies the user in Professor Merges’s high-level principles grounded in Locke, Kant, and Rawls. Part IV follows this argument with a closer examination …

Transition Relief For Tax Reform’S Third Rail: Reforming The Home Mortgage Interest Deduction After The Housing Market Crash, Nicholaus W. Norvell

San Diego Law Review

This Comment argues that Congress should—in this order of preference—eliminate the mortgage interest deduction, replace it with a credit, or substantially modify it, and that Congress can adopt any of these policies without substantial short-term fallout in the housing market. Part II of this Comment examines how the mortgage interest deduction works, its history, and its intended benefits. Part III scrutinizes the deduction’s inability to achieve its primary objective—increasing homeownership—and examines its negative effects on housing prices, household indebtedness, the environment, and wealth disparity. Accordingly, this Part argues that Congress should reform the deduction, discusses three basic options available for …

Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor

San Diego Law Review

[T]his Article describes the artisan and merchant guild systems of the Venetian Republic. Part III explores the emergence of the patent system as a means for foreigners and Venetian citizens to compete with the guilds, as well as the eventual addition of negative exclusive rights to the basic license form of positive patent privileges. In so doing, contrary to the speculation of some scholars, we reject with near certainty the contention that the first patent law statute granting exclusionary rights for—in modern parlance—technological inventions was a silk-specific directive enacted by the Venetian Grand Council in the late fourteenth or early …

Harmonizing Equitable Exceptions: Why Courts Should Recognize An “Actual Innocence” Exception To The Aedpa’S Statute Of Limitations, Morgan Suder

San Diego Law Review

This Comment argues that to neutralize this potential inequality, the Supreme Court should affirm the Ninth Circuit’s recent decision in Lee v. Lampert, finding that a credible claim of actual innocence constitutes an equitable exception to the AEDPA’s one-year statute of limitations period. District courts must be able to call on their equitable powers, including both equitable principles already applied to the AEDPA’s statute of limitations as well as the actual innocence exception, in determining whether a district court may consider the merits of a criminal defendant’s otherwise untimely habeas petition.

Part II discusses the role of federal habeas corpus …

Foreword, Kyle M. Bird

San Diego International Law Journal

This Fourteenth Volume of the San Diego International Law Journal is composed of articles that demonstrate the importance of historical and contemporary expositions of international law. The topics range from international criminal law, territorial agreements between the United States and Mexico, international banking standards, and the legal consequences of the Defense of Marriage Act for bi- national same-sex couples in the United States and Canada. 2012 saw the further change of the world through elections, wars, and economic problems. The articles presented in this First Issue address these economic, political, and social changes of our time.

The 2012 U.S.-Mexico Agreement On Transboundary Hydrocarbon Reservoirs In The Gulf Of Mexico: A Blueprint For Progress Or A Recipe For Conflict?, Jorge A. Vargas

San Diego International Law Journal

This Article is divided into four parts. Parts I and II describe each of the four previous U.S.-Mexico maritime delimitation treaties of 1970, 1976, 1978, and 2000. These treaties represent different degrees of progress in the process of completing the maritime boundaries that geographical contiguity imposes upon these contiguous countries. This was a slow and careful process that spanned almost half a century. Part III analyzes the 2012 U.S.-Mexico Agreement on Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico from an international law perspective, with special reference to the interests of the United States and Mexico. Finally, Part IV advances …

The Judicialization Of International Atrocity Crimes: The Kharkov Trial Of 1943, Michael J. Bazyler, Kellyanne Rose Gold

San Diego International Law Journal

This Article analyzes the Kharkov trial, the first trial of Nazi war criminals undertaken by any Allied Power, as well as the first trial of the Holocaust. It is written on the occasion of the 70th anniversary of the Kharkov trial. Part II, as background, describes the Holocaust as experienced in Kharkov, Ukraine. Part III discusses the trial that took place in Kharkov: the defendants, the prosecution, the setting, and the testimony. Part IV looks at the Kharkov trial as a typical Stalinist “show trial,” where guilt has been predetermined and a trial is used merely as a show to …

"There's No Place Like Home" Doma Deportation: The Forced Expatriation Of Bi-National Same-Sex Couples From The United States To Canada, Anh "Annie" Nguyen

San Diego International Law Journal

This comment will focus on bi-national same-sex couples who are forced to expatriate from the united states to canada because of DOMA’s detrimental effects on their relationship. more specifically, part I focuses on DOMA’s constitutionality, effects on bi-national same-sex couples, and current legal challenges. Part II provides a historical analysis of the united states’ attitude towards same-sex unions before describing current legislation regarding same-sex couples. Part III describes canada’s recognition of same-sex marriage and support of immigration equality, comparing and contrasting the canadian approach with the united states’ approach. Part IV explains the current legal and financial issues that bi-national …

Cyberterrorism In The Context Of Contemporary International Law, Yaroslav Shiryaev

San Diego International Law Journal

The present Article addressed the legal issues surrounding cyberterrorism. In the first chapter, the author explains why cyberterrorism should be described as “the use of electronic networks taking the form of a cyber-attack to commit a) a substantive act criminalized by the existing legal instruments prohibiting terrorism, or b) an act of terrorism under international customary law.” Further, with a special emphasis on existing anti-terrorism conventions and customary international law, it was demonstrated which actors are likely to engage in acts of cyberterrorism (non-state actors, corporations and individuals), as well as which targets are protected by law and which aims …

Basel Iii And Credit Risk Measurement: Variations Among G20 Countries, Matt Schlickenmaier

San Diego International Law Journal

Most countries require banks to hold extra capital to protect against unforeseen financial calamities; banks with riskier loans must hold more capital than those with safer loans. Basel II, a set of international banking standards, allows banks to measure a loan’s risk in different ways: some banks make their own judgments; others use outside agencies. The recent mortgage crisis prompted banks to reevaluate these methods, in part due to banks having failed to perceive the high level of risk inherent in securitized mortgages. The international community’s response was Basel III, an updated version of its previous standards. This Comment will …

Antitrust As Regulation, Alan Devlin

San Diego Law Review

Antitrust, properly understood, plays a modest role in constraining commercial behavior. With respect to unilateral conduct, it does not prohibit monopoly or the fortuitous or quality-based acquisition of the same. It generally permits dominant companies to enjoy the fruits of their positions and does not speak to the propriety of excessive pricing. It does not impose service obligations on monopolists, nor does it generally limit their right to price discriminate amongst their consumers. It merely prohibits monopolists' artificial creation of impediments to competition--so-called exclusionary practices. With respect to concerted behavior, the law allows a vast swathe of private agreements, even …

The Informational And Institutional Theories Of Off-Label Promotion, Miguel A. Lopez

San Diego Law Review

This Article contends that there are two distinct theories of the offense of off-label promotion—the informational theory and the institutional theory. One is concerned with controlling the flow of medical knowledge and the other is concerned with protecting regulatory legitimacy. Different kinds of evidence are key under each theory. I argue that although the Federal Food, Drug, and Cosmetic Act (FD&C Act) and its accompanying regulations emphasize the informational theory, federal prosecutors rely more heavily on the legal arguments that underpin the institutional theory of enforcement. A corollary to this contention is that the informational theory of off-label promotion does …

The Constitutional Jurisprudence Of Justice Kennedy On Speech, Charles D. Kelso, R. Randal Kelso

San Diego Law Review

Justice Kennedy's basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn, and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations and intermediate review for content-neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for …

Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias

San Diego Law Review

This Article examines the legal tensions that currently exist between public schools' attempts to protect gay students from bullying and harassment and antigay students' First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have …

Pliva Shields Big Pharma From Billions, Cuts Consumers' Rights, Dana Taschner

San Diego Law Review

This Article explores the emergence of the LRA test, as well as its dangers, and explains how an equivalent norm underlies recent monopolization cases. The Author concludes that the law should not require business practices to maximize social welfare to pass muster under the antitrust laws. As tools of public policy directed at unilateral market behavior, antitrust and regulation have long played distinct, though complementary, roles. Natural-monopoly regulation has as its immodest goal the maximization of consumer welfare by simultaneously imposing universal service obligations and spurring the efficiencies associated with competition through the imposition of various behavioral constraints. That such …

Comparing Single-Sex And Reformed Coeducation: A Constitutional Analysis, Nancy Chi Cantalupo

San Diego Law Review

One of the most enduring educational debates of the past three decades has dealt with the legality and advisability of sex-segregated education. This debate can often look confusing, given a large number of debaters and the diversity of their perspectives and agendas. More than this diversity, however, the debate is confusing because the debate has been structured as a contest between the "innovation" of sex-segregated education and status quo coeducation. Missing from the debate is a comparison between reformed coeducation and a single-sex alternative, a comparison that is markedly more useful in determining what ought to be done about the …

Clarifying The Normative Dimension Of Legal Realism: The Example Of Holmes's The Path Of The Law, Edmund Ursin

San Diego Law Review

In a recently published article, I examined the Legal Realism found in Leon Green's and Karl Llewellyn's tort scholarship. Brian Leiter had previously presented an insightful "philosophical reconstruction" of Legal Realism. In articulating what he sees as the descriptive and normative aspects of Legal Realism, Leiter drew most of his examples from the field of commercial law, which was the main focus of Llewellyn's scholarship. In this context he wrote that most Legal Realists made a descriptive claim about judicial decisions or, more specifically, decisions of appellate courts. Stated in its most succinct form, this descriptive claim was that judicial …

Shareholder To Intermediary: "Thanks...It Is 'Appreciated'!", Terri Gunn

San Diego Law Review

Part II of this Casenote explores the history behind the General Utilities doctrine, and Part III explains the why the doctrine was ultimately repealed. Part IV then analyzes Starnes and how it could lead to the resurrection of the General Utilities doctrine through the use of intermediaries. Finally Part V concludes by drawing attention to the ease with which other shareholders, eager to avoid a corporate-level tax, could replicate the Starnes transaction.

The Ftca, Veterans, And Future Medical Expenses, R. J. Pinto

San Diego Law Review

In this comment the author aims to expose the jurisprudential flaws in a particular area of the law and advocate, as his prescription a refocused jurisprudence. Part II describes how courts have historically come to the conclusion that veterans suing under the FTCA should be awarded future medical expenses despite their entitlement to VA medical care. Part III address a threshold issue: the extent to which courts using this framework have overcompensated veterans. Part IV addresses why overcompensating veterans under the FTCA matters on a policy level. Part V exposes the problems with the court's jurisprudence and provides a solution …

Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment, R. George Wright

San Diego Law Review

This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing …

Sexual Liberty And Same-Sex Marriage: An Argument From Bisexuality, Michael Boucai

San Diego Law Review

This article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relationship and relationships, impermissibly burdening sexual liberty interests protected under Lawrence v. Texas. A claim from sexual liberty departs dramatically from the legal paradigms and advocacy strategies that currently dictate the terms of constitutional debate on this issue. This article proceeds in four parts. Part II develops the legal argument that same-sex marriage bans are unconstitutional under Lawrence because they substantially burden the right to choose homosexual relations and relationships. Part III posits bisexuality, understood as dual-sex desire, as an illuminating perspective on the coerced heterosexuality of …

Cognitive Illiberalism And Institutional Debiasing Strategies, Paul M. Secunda

San Diego Law Review

This article investigates institutional debiasing strategies that may work to further minimize conflict in society over labor and employment law decisions. In this vein, Part II seeks to distill the essentials of culturally motivated cognition and how it relates to, yet differs from, other earlier studies on the role that values and assumptions play in labor and employment law cases. Part III then comprehensively explores a spectrum of debiasing strategies for legal decisionmakers, from opinion-writing debiasing strategies to institutional strategies involving specialized courts and judges. Finally, Part IV considers the arguments against such institutions, and finally, the promise of opacity …

Foreword, Nicole J. Smith

San Diego International Law Journal

This issue of the San Diego International Law Journal is composed of articles that exemplify the value in utilizing an international comparative approach to analyze and compare differing historical experiences. Taking a comprehensive review of the successes and failures of legal structures abroad provides an opportunity to harness and develop new possible solutions to today’s legal problems. By analyzing and understanding differing international prospective on legal issues, we gain a fuller understanding of ourselves, and of our common humanity, so that we may better face the future.

The Evolution Of A New International System Of Justice In The United Nations: The First Sessions Of The United Nations Appeals Tribunal, Tamara A. Shockley

San Diego International Law Journal

In this overview of the new U.N. administration of justice system, a review has been undertaken of the evolution of the process from the former internal justice system to the development of the new administration of justice system. The Appeals Tribunal had a partially blank slate upon which to begin a new jurisprudence in international administrative law. In the first two sessions, the Appeals Tribunal decided upon a wide range of issues ranging from receivability, case management, disciplinary measures and pension cases. As the U.N. attempts to reform and streamline its bureaucratic structure for the 21st century, the judicial tribunals …