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Articles 1 - 30 of 72
Full-Text Articles in Law
Motions 2003 Volume 39 Number 4, University Of San Diego School Of Law Student Bar Association
Motions 2003 Volume 39 Number 4, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Harm, History, And Counterfactuals, Stephen Perry
Harm, History, And Counterfactuals, Stephen Perry
San Diego Law Review
In this Article I undertake a very preliminary inquiry into some aspects of the concept of harm. My excuse for doing so in a symposium on compensation is that, in private law and particularly in tort law, an award of damages is often intended to compensate for harm; if we do not know something about the nature of harm, we cannot fully understand the nature of at least this type of compensation.
Dramatic Decreases In Clarity: Using The Penn Central Analysis To Solve The Tahoe-Sierra Controversy, Dana Larkin
Dramatic Decreases In Clarity: Using The Penn Central Analysis To Solve The Tahoe-Sierra Controversy, Dana Larkin
San Diego Law Review
This Comment discusses the issues and confusion regarding regulatory takings and the proper test for establishing a regulatory taking. The author starts by discussing the traditional ad hoc factors used to determine whether a taking had occurred. The author then discusses how these factors formed the basis of the three-factor test used in Penn Central Transportation Co. v. New York City. Next, the author explains the controversial area of temporary development moratoria and how this issue has been dealt with in the Lake Tahoe Basin of California . He suggests that the plaintiff's in Tahoe-Sierra Preservation Council, Inc. v. Tahoe …
Introduction, Editorial Board
Introduction, Editorial Board
San Diego Law Review
On February 28-March 1, 2003, the University of San Diego Institute for Law and Philosophy held a conference entitled "Baselines and Counterfactuals in the Theory of Compensatory Damages: What Do Compensatory Damages Compensate?" The articles in this collection emerge from that symposium.
Hand Rule Damages For Incompensable Losses, Robert Cooter
Hand Rule Damages For Incompensable Losses, Robert Cooter
San Diego Law Review
Courts should develop theory and practice of damages for incompensable losses based on the response of reasonable people to daily risks. Specifically, courts should compute damages based on the reasonable person's point of indifference between less risk and more expenditure on precaution. The Hand rule describes this point of indifference.
Can We Compensate For Incompensable Harms?, Adi Ayal
Can We Compensate For Incompensable Harms?, Adi Ayal
San Diego Law Review
Compensating for harms is the bedrock of the practice of tort law. The hypothetical ideal of "making the victim whole" guides many a classroom discussion and judicial opinion. Yet we all know that his ideal is often unattainable for a variety of practical and conceptual reasons. Focusing on the conceptual issues, a question might be asked: Are we ever Really able to make the victim whole? In this Article, I aim to stress and develop the aspects of the argument I find most convincing, while critiquing others.
Instrumental Theories Of Compensation: A Survey, Richard Craswell
Instrumental Theories Of Compensation: A Survey, Richard Craswell
San Diego Law Review
This Article is to argue (albeit reluctantly)against the union of a compensatory remedy that can be and have been defended from the standpoint of corrective justice on the theory that corrective justice requires that a wrongdoer compensates those that have been wronged versus compensatory remedies that have been defended by economists, and by others who rely on instrument arguments, on the theory that compensatory remedies promote efficiency. In the process, I will survey the economic or instrumental arguments for compensation in some detail, for the benefit of those who may not have kept up with the economics literature. But this …
Moore, Causation, Counterfactuals, And Responsibility, Richard Fumerton
Moore, Causation, Counterfactuals, And Responsibility, Richard Fumerton
San Diego Law Review
Professor Michael Moore's contribution to this symposium represents a deep and thorough examination of the relationship between counterfactual and causal tests, the meeting of which are often taken to be necessary conditions for various sorts of moral and legal responsibility.
For What Must We Pay? Causation And Counterfactual Baselines, Michael Moore
For What Must We Pay? Causation And Counterfactual Baselines, Michael Moore
San Diego Law Review
It is often thought that the hard core of our moral obligations - the social minimum, so to speak - is that we do no harm. Regardless of what may be virtuous, supererogatory, or obligatory in making the world a better place, at a minimum we should not make it a worse one. Further, we make the world a worse place whenever we worsen it compared to the way the world would have been without our actions. On this view, our actions must make a difference for us to violate our basic obligations. What gets recorded in our moral ledgers …
Rethinking Injury And Proximate Cause, John C.P. Goldberg
Rethinking Injury And Proximate Cause, John C.P. Goldberg
San Diego Law Review
Injury and proximate cause form two components of a plaintiff's prima facie negligence case. Although equals in this sense, they have received starkly different treatment at the hands of judges and scholars. Proximate cause has long attracted attention, yet has also managed to defy repeated efforts at characterization and explanation. Injury by contrast, seems to have been largely ignored. One of the many virtues of professor Perry's paper is that it prompts reconsideration of this disparate treatment from both ends. By offering a subtle and rich account of the related concept of "harm," Perry permits us to see that the …
What To Compensate? Some Surprisingly Unappreciated Reasons Why The Problem Is So Hard, Leo Katz
What To Compensate? Some Surprisingly Unappreciated Reasons Why The Problem Is So Hard, Leo Katz
San Diego Law Review
The aim of this Article is to get to the bottom of what makes compensation problems so hard.
A Pertinent Message For Today From Key Constitutional And Administrative Rulings Of Yesterday, Victor G. Rosenblum
A Pertinent Message For Today From Key Constitutional And Administrative Rulings Of Yesterday, Victor G. Rosenblum
San Diego Law Review
This Article discusses the United States' commitment to constitutional governance and the accountability of power and specifically the judiciary's obligation to protect civil liberties from excessive governmental intrusion during times of war. The author begins by describing Chief Justice Rehnquist's 1998 book All the Laws But One: Civil Liberties in Wartime, in which the Chief Justice predicts and suggests that during times of war, courts should bypass judicial principles that traditionally have protected individuals against excessive government intrusion. The author argues that the United States government must demonstrate self-control whether at war or peace. He supports his argument by exploring …
Hedge Funds Are Headed Down-Market: A Call For Increased Regulation?, Erik J. Greupner
Hedge Funds Are Headed Down-Market: A Call For Increased Regulation?, Erik J. Greupner
San Diego Law Review
This Comment examines the current debate surrounding increasing regulations on hedge funds in order to provide better investor protection. The author starts out by explaining what a hedge fund is and how they have grown in importance over the years. The author then discusses some of the recent trends in the hedge fund industry that have concerned the SEC, such as increases in fraud, conflicts of interest, and marketing to less sophisticated investors. Next, the author explains the current state of regulations for the hedge fund industry as well as the rationales for such limited regulations. The author then discusses …
Compensation And Revenge, Emily Sherwin
Compensation And Revenge, Emily Sherwin
San Diego Law Review
Compensation is one of the least controversial goals of law; compensating for harms is assumed to be both efficient and morally praiseworthy. I shall argue that the moral component of this assumption needs refinement. Some of the features of legal remedies that pass as compensatory suggest that pursuit of compensation is not entirely virtuous.
The Grounds And Extent Of Legal Responsibility, Richard W. Wright
The Grounds And Extent Of Legal Responsibility, Richard W. Wright
San Diego Law Review
To question that is the title of this symposium, What Do Compensatory Damages Compensate?, requires consideration of the basic grounds and purposes of legal responsibility. The question is usefully brought into sharper focus by the specific questions and puzzles posed to the contributors to stimulate thought and discussion.
Baselines And Compensation, F.M. Kamm
Baselines And Compensation, F.M. Kamm
San Diego Law Review
The first problem that we shall examine is raised by the cases in which by our tortious wrong act someone is either (1) made no worse off than he would have been because the injury is one he would have suffered anyway by another means or (2) made better off because, though the act produces an injury, it benefits him by interfering with an upcoming greater injury. Should we assign liability based on the fact that an injury was caused relative to how the person was in his prior uninjured state (namely, the causal approach)? Or, should we take account …
Compensation: Justice Or Revenge?, Kenneth W. Simons
Compensation: Justice Or Revenge?, Kenneth W. Simons
San Diego Law Review
This Article will suggest that nonconsequentialist accounts of tort doctrine have much more explanatory power than she suggests and that the supposed fact that many tort victims act from vengeful motives has less. At the same time, her revenge interpretation does have value in illuminating some aspects of tort doctrine.
Dardinger V. Anthem Blue Cross & Blue Shield: Judicial Redistribution Of Punitive Damage Awards, C.J. Martin
Dardinger V. Anthem Blue Cross & Blue Shield: Judicial Redistribution Of Punitive Damage Awards, C.J. Martin
San Diego Law Review
This Casenote examines the role of punitive damages in tort law and the actions of the Ohio Supreme Court in Dardinger v. Anthem Blue Cross & Blue Shield. The author begins by describing the anomalous nature of punitive damages, which are a form of punishment, being given to a plaintiff in a tort system that is compensatory in nature. The author then gives an overview of the punitive damages doctrine historically and as it exists today. Next, the author discusses the Dardinger case and analyzes the implications of the court's decision to remit a portion of the punitive damages on …
Motions 2003 Volume 39 Number 3, University Of San Diego School Of Law Student Bar Association
Motions 2003 Volume 39 Number 3, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Motions 2003 Volume 39 Number 2, University Of San Diego School Of Law Student Bar Association
Motions 2003 Volume 39 Number 2, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Motions 2003 Volume 39 Number 1, University Of San Diego School Of Law Student Bar Association
Motions 2003 Volume 39 Number 1, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Statutory Interpretation, Comparative Law, And Economic Theory: Discovering The Grund Of Income Taxation, William B. Barker
Statutory Interpretation, Comparative Law, And Economic Theory: Discovering The Grund Of Income Taxation, William B. Barker
San Diego Law Review
This Article examines the interpretation of tax statutes and the changing concept of income. The author begins by explaining the traditional view of how tax statutes were interpreted both in the United Kingdom and the United States. He then discusses the United States Supreme Court’s early approach to the concept of income as found in Eisner v. Macomber. Next, the author addresses the change from a formalistic interpretation regarding income to a more purposive approach associated with the legal process theory. The author then discusses the history and context of income taxation in America, including the purpose of Congress and …
The Multiple Roles Of Corporate Boards Of Directors, Lynne L. Dallas
The Multiple Roles Of Corporate Boards Of Directors, Lynne L. Dallas
San Diego Law Review
This Article discusses the multiple roles of corporate boards, including the manager-monitoring, relational, and strategic management roles. The author begins by discussing the developments in the manager-monitor role of boards of directors in the United States, including the trends toward having a greater number of outside directors, the creation of specialized committees, and ensuring board member’s expertise in certain areas. Next, the author examines developments in the relational monitoring role of board of directors. The author then goes on to address the several theories and empirical studies regarding the roles of corporate boards. Based upon meta-analysis that insider-dominated and outsider-dominated …
The "Most Valuable Sort Of Property": Constructing White Identity In American Law, 1880-1940, J. Allen Douglas
The "Most Valuable Sort Of Property": Constructing White Identity In American Law, 1880-1940, J. Allen Douglas
San Diego Law Review
This Article examines the manner in which southern courts labored to instill the legal meaning of whiteness as an object of property inherent in the individual in cases involving racial defamation, miscegenation, and writs of mandamus to white-only schools during the decades following Plessy. The author starts by discussing Plessy and the argument that the reputation of being white was itself a property interest that deserved legal protection from being taken away from the individual by the community. Although this argument did not succeed in Plessy, the author goes on to discuss how a new property regime began to develop …
Spontaneous Mutation: A Sudden Change In The Evolution Of The Written Description Requirement As It Applies To Genetic Patents, Duane M. Linstrom
Spontaneous Mutation: A Sudden Change In The Evolution Of The Written Description Requirement As It Applies To Genetic Patents, Duane M. Linstrom
San Diego Law Review
This Article examines the recent history of the ways in which the courts have applied the written description requirement to gene patents, with a particular focus on the changes in the law wrought by the July 2002 decision in Enzo Biochem, Inc. v. Gen-Probe Inc. The author begins by describing the written description requirement of 35 U.S.C. § 112 for a patent application. Then, the author discusses recent case law influencing the evolution of the written description requirement for patenting genetic material. Next, he discusses the decision in the first Enzo case, which seemed to follow established case law and …
Undercutting Premises Liability: Reflections On The Use And Abuse Of Causation Doctrine, Julie Davies
Undercutting Premises Liability: Reflections On The Use And Abuse Of Causation Doctrine, Julie Davies
San Diego Law Review
This Article discusses the California Supreme Court’s affirmance of summary judgment for the defendants in Saelzler v. Advanced Group 400, a case in which a victim was attacked on property where she worked because of negligent security measures. Normally, these tort cases are resolved by looking at the element of “duty,” but this case was decided on causation grounds. The author begins by analyzing the Saelzler case and its implications on future litigation. She argues that the decision erodes the balance between judge and jury and conflicts with every goal of tort law, whether corrective, compensatory, or deterrent. The author …
Court Delay And The Waiting Child, Jessica K. Heldman
Court Delay And The Waiting Child, Jessica K. Heldman
San Diego Law Review
This Comment addresses the failure of our legal system when adopted children are forced to wait years before it is determined who will have legal custody of them. The author begins by exposing the problem and the devastating effects of these delays by providing evidence of delay in both private adoption and foster care placement cases. Then, the author explores the current legal framework within which courts make these life-altering child placement decisions. Next, the author confronts the question of why delay occurs, including several contributing factors, such as a lack of specific guidelines based on a child’s sense of …
The Bajagua Project: Finding A Solution To The San Diego-Tijuana Sewage Crisis, Ross Campbell
The Bajagua Project: Finding A Solution To The San Diego-Tijuana Sewage Crisis, Ross Campbell
San Diego Law Review
This Comment discusses the problem of raw and partially treated sewage flowing from the Tijuana River into the San Diego region. The author begins by explaining how the problem was created by a population growth in Tijuana and a lack of an adequate sewage system. The author then goes on to discuss historical developments and lessons learned from past attempts to alleviate this problem. Next, the author examines the Bajagua project, an effort to solve the problem by constructing a large secondary treatment in Mexico. The author argues that this is the most comprehensive solution because of the added benefit …