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University of San Diego

2003

Articles 31 - 60 of 72

Full-Text Articles in Law

Judicial Review And International Law, Michel Troper May 2003

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.

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International Law And The Pre-Emptive Use Of Force: Afghanistan, Al-Qaida, And Iraq, Christopher Greenwood May 2003

International Law And The Pre-Emptive Use Of Force: Afghanistan, Al-Qaida, And Iraq, Christopher Greenwood

San Diego International Law Journal

This Article will review the legal framework on the use of force and suggest that there are cases in which the use of "preemptive force" may be justified, provided that certain important conditions are satisfied. Parts III and IV will then apply this analysis to the two cases that have focused attention on the whole issue of preemptive action, namely, the threat from international terrorism (Part III) and the situation in Iraq (Part IV). The writer's conclusions are summarized in Part V.

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Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni May 2003

Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni

San Diego International Law Journal

Many today claim that, after WWII, the fall of the Berlin wall and, now, September 11, 2001, the changing nature of nation states, democracy, and the law can no longer be sensibly ignored. How can comparative law contribute to such an important debate? In what follows, it is argued that one way to contribute to the debate over the changing nature of nation states, democracy, and the law would be to engage in poetic comparisons of law's many domains. What, then, are poetic comparisons of law, and what do they invite us to do? Learning from Martin Heidegger's life-long advocacy …

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The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski May 2003

The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski

San Diego International Law Journal

The purpose of this Article is to discuss the evolution of the alienage jurisdiction statute and the status of overseas dependent territories in light of the recent Supreme Court decision. Part I of this Article will provide a brief historical background of 28 U.S.C. § 1332 and its purpose. Part II will discuss the concepts of the state and statelessness, as well as the role of dependent territories in international affairs. Part III will discuss and analyze the various federal decisions seemingly at loggerheads with each other on the issue of federal jurisdiction over dependent territories. Finally, Part IV will …

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"Sinking" The Caroline: Why The Caroline Doctrine's Restrictions On Self-Defense Should Not Be Regarded As Customary International Law, Maria Benvenuta Occelli May 2003

"Sinking" The Caroline: Why The Caroline Doctrine's Restrictions On Self-Defense Should Not Be Regarded As Customary International Law, Maria Benvenuta Occelli

San Diego International Law Journal

This Comment will show how the Caroline doctrine came to exist, argue that no real doctrine was created as to an imminence requirement, and show that what is known today as the true Caroline doctrine is really obsolete international law and not a current standard by which to judge the legality of a state's use of force in self-defense.

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Authorization To Kill Terrorist Leaders And Those Who Harbor Them: An International Analysis Of Defensive Assassination, Brenda L. Godfrey May 2003

Authorization To Kill Terrorist Leaders And Those Who Harbor Them: An International Analysis Of Defensive Assassination, Brenda L. Godfrey

San Diego International Law Journal

The purpose of this Comment is to explore the legal justification for the targeted killing of a terrorist leader as an act of self-defense. In particular, the focus of this Comment will be on the interpretation of the self-defense doctrine under customary international law and the United Nations Charter. First, this Comment will examine the background and common definitions of assassination. Then, the focus will shift to an evaluation of the relevant customary international law and the Caroline doctrine. Next, this Comment will analyze the United Nations Charter, Article 51 as it relates to a claim of self-defense in response …

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Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp May 2003

Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp

San Diego International Law Journal

In tackling the issue of sexual orientation discrimination, the European Union must make significant efforts to conform or, perhaps, eradicate incongruous legislation within Applicant Countries. The difficulty of this endeavor is two-fold: first, in terms of the number and complexity of the laws of each Applicant Country; and, second, in the absence of any detailed and systematic documentation of sexual orientation discrimination within those same Applicant Countries. Compounding, if not confounding, such legitimate endeavors are the inconsistent anti-gay legislation prevalent within the present Member States. The stakes are high for Member States and Applicant Countries alike. Thus, the European Union's …

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Escaping The Asylum: When Freedom Is A Crime, Grant H. Morris May 2003

Escaping The Asylum: When Freedom Is A Crime, Grant H. Morris

San Diego Law Review

This Article discusses the constitutionality and desirability of laws that criminalize escape by civilly committed mental patients from the hospitals or other treatment facilities in which they are confined. Although escape by sentence-serving convicts is a crime in many states, regardless of whether they escape from prison or from another place of confinement or custody, escape by “regular” civilly committed mental patients is not. Nevertheless, criminalization of escape is becoming increasingly popular for “special” civilly committed patients, such as individuals who have been acquitted of crime by reason of insanity and sexually violent predators. Pivotal Supreme Court decisions involving specially …

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Failure To Warn: A Proposal That The Warn Act Provide A Compensatory, Make-While Remedy For Unwarned Employees, Tonya M. Cross May 2003

Failure To Warn: A Proposal That The Warn Act Provide A Compensatory, Make-While Remedy For Unwarned Employees, Tonya M. Cross

San Diego Law Review

This Comment uses a fictional community and company to examine the WARN Act, which requires certain employers to give advance notice to workers of a planned mass layoff or plant closing. The author begins by looking at the WARN Act itself and how a company can comply with the act's requirements. The author also discusses the ambiguities of the WARN Act and how these ambiguities should be resolved. The author concludes by recommending several amendments that Congress should make to the WARN Act in order to make it more "user friendly".

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Foreword, Dylan Oliver Malagrino May 2003

Foreword, Dylan Oliver Malagrino

San Diego International Law Journal

The Articles and Comments in this Volume cover a wide range of topics. Appropriately, each one uses a tiered attack on an international legal issue, making the authors' expressed arguments tremendously strong. These articles represent the kind of international thinking that is and will be required of our intellectuals in the upcoming decades. I hope that the fresh, new ideas and original legal analysis of each piece in this Volume increase the number of levels and broaden the bandwidth in which we discuss every international legal issue to come.

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The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley May 2003

The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley

San Diego International Law Journal

This Article seeks to illumine the legal nature of the letter of credit instrument, and catalogue the various sources of law and rules that can govern it; and, by doing so, render a service to those who must quickly come to grips with letter of credit law. The Article is in two parts. The first part examines the legal nature of the letter of credit by looking at its definition, operation, and history and by comparing it with negotiable instruments and contracts. The second part considers the rules, customs, and regulations governing letters of credit and introduces the two fundamental …

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Politics Without Democracy: A Study Of The New Principal Officials Accountability In Hong Kong, Christine Loh, Richard Cullen May 2003

Politics Without Democracy: A Study Of The New Principal Officials Accountability In Hong Kong, Christine Loh, Richard Cullen

San Diego International Law Journal

his Article seeks to discuss a range of issues related to the POAS. These issues include: The "one country, two systems" framework; The background to the introduction of the POAS; The fundamentals of the POAS; The notion of accountability pre- and post-POAS; An evaluation of executive government systems; The issues arising from the implementation of POAS; and, A best practice ministerial model for Hong Kong.

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Will That Be First Class, Business Class, Or Pet Class - Changing Legal Trends For The Traveling Pet, Judith R. Karp May 2003

Will That Be First Class, Business Class, Or Pet Class - Changing Legal Trends For The Traveling Pet, Judith R. Karp

San Diego International Law Journal

This Article discusses the recently enacted British and European Union legislation that eases the restrictions on pet travel from the United States and Canada to European countries and its effect on the ailing airline and travel industries.

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Nigeria Since May 1999: Understanding The Paradox Of Civil Rule And Human Rights Violations Under President Olusegun Obasanjo, Philip C. Aka May 2003

Nigeria Since May 1999: Understanding The Paradox Of Civil Rule And Human Rights Violations Under President Olusegun Obasanjo, Philip C. Aka

San Diego International Law Journal

This Article seeks to understand why much of the hope for improved human rights has remained unrealized. It has four parts, in addition to this introduction and a conclusion. Part II provides a definition of human rights, the history of these rights in Nigeria, and the machinery that has evolved over the years, all the way up to the Obasanjo presidency, for the enforcement of these rights. Part III describes the practice of human rights in Nigeria before 1999. The section integrates General Obasanjo's role and it points to the legacy of British colonialism in Nigeria as a major factor …

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The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy May 2003

The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy

San Diego International Law Journal

This study is divided into two sections. The first section is further divided into two subsections. The first subsection examines the problems in defining emergencies; in the second subsection, we will examine the preconditions required for a valid derogation. The second section determines the Strasbourg machinery for the protection of human rights. This section is also divided into four subsections. Each subsection examines separate case laws from the European Court of Human Rights. Finally, a conclusion will be deduced in the light of the former reviews.

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Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter May 2003

Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter

San Diego International Law Journal

After looking at the concept of self-determination, its history, meaning, and possible future development in Part II, this Paper will develop two case studies. Part III examines the right of self-determination for the people of Gibraltar, analyzing the relevant U.N. resolutions, agreements, treaties, and legislation that have defined the dispute between Great Britain and Spain. For example, Great Britain has ruled the Rock of Gibraltar for 280 years, primarily using it as a military base; but, today, Spain insists that it did not relinquish absolute sovereignty over Gibraltar to the British by the Treaty of Utrecht in 1713. Part IV …

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Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan May 2003

Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan

San Diego International Law Journal

This Article examines whether the relationship between publican and patron should or should not produce such an obligation. It also addresses the possible defenses to such a claim in the tort of negligence. Finally, as the matter is not a settled point of Irish law, this Article also attempts to assess the potential approach of its courts, in view of the approach taken by the English courts to the issue and the flurry of academic comment in the wake of a recent Irish settlement. These issues are certain to surface in litigation again. Regardless of the approach taken by the …

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Affixing Blame: Ideologies Of Hiv/Aids In Thailand, Tarik Abdel-Monem May 2003

Affixing Blame: Ideologies Of Hiv/Aids In Thailand, Tarik Abdel-Monem

San Diego International Law Journal

This Article focuses on ideologies of the HIV/AIDS epidemic in Thailand, one of many nations where the HIV/AIDS pandemic has reached alarming levels. Not unlike other nations struggling with HIV/AIDS, an epidemic of stigma and blame has developed in Thailand with increasing rates of infection among the population. Understandings of whom to blame for the epidemic, and how to realize appropriate solutions, have likewise developed as the epidemic continues to persist and spread. This Article examines these ideologies and how they are mediated through the lens of popular culture in contemporary Thailand. It attempts to examine the reasoning of such …

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Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman May 2003

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …

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Towards A Solution To The Problem Of The Common Anadromous Stocks Of The North Pacific, Christian C. Polychron May 2003

Towards A Solution To The Problem Of The Common Anadromous Stocks Of The North Pacific, Christian C. Polychron

San Diego International Law Journal

The problem of the common anadromous stocks of the North Pacific is currently addressed through a legal regime operating within the framework established by the UNCLOS. This legal regime operates on two distinct fronts, but the externalities and incentives that define a problem of the commons continue to exist on both fronts. On the high seas, inadequate enforcement enables vessels and nations to violate the ban against high seas salmon harvests and to externalize the costs of doing so. Within EEZs, ineffectual bi-national treaties enable nations to which salmon stocks migrate to over exploit salmon stocks that originate in other …

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Why The Bar Needs Academics - And Vice Versa, Fred C. Zacharias May 2003

Why The Bar Needs Academics - And Vice Versa, Fred C. Zacharias

San Diego Law Review

This Article argues that practicing attorneys have a need for academics to bring the their legal approaches back to a sense of reality. The author makes this argument by giving three examples of personal experience at a recent symposium sponsored by the University of Arizona College of Law, entitled "The Future Structure and Regulation of Law Practice." The author claims that sometimes practitioners are blinded by their own traditions and refused to consider new and better approaches. Academics who have less at stake in existing traditions are more willing to consider new solutions.

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The Stubbornness Of Pretexts, Daniel Y. Yeager May 2003

The Stubbornness Of Pretexts, Daniel Y. Yeager

San Diego Law Review

This Article discusses the issue of pretext and whether evidence discovered by way of a pretext violate the Fourth Amendment's injunction against unreasonable searches and seizures. The author begins by examining what a pretext is, concluding that a pretext is a way of criticizing an action that had a motive that is incompatible with the ordinary, conventional reasons for the action. The author then discusses pretextual police action and the Supreme Court case of Whren v. US 's failure to acknowledge what counts as pretext. The author goes on to discuss the Supreme Court case of Arkansas v. Sullivan and …

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The Applicability, Apprpriateness, And Enforcement Of The "Background Levels" Standard For Contaminated Sediment Cleanup Under California State Water Resources Control Board Resolution 92-49, Benjamin Benumof May 2003

The Applicability, Apprpriateness, And Enforcement Of The "Background Levels" Standard For Contaminated Sediment Cleanup Under California State Water Resources Control Board Resolution 92-49, Benjamin Benumof

San Diego Law Review

This Comment discusses the problem of contaminated sediments in ports and waterways and the scientific, technological, legal, and regulatory barriers to fixing the problem. The author begins by addressing whether California State Water Resources Control Board Resolution 92-49 is applicable to establishing cleanup levels for contaminated marine bay bottom sediments. Next, the author assumes that Resolution 92-49 is applicable and examines the boundaries of its enforcement and limitations of it application. The author then explores what standards Regional Boards might use for cleanup level decisions of bay bottom sediments if Resolution 92-49 was not applicable. The author then addresses whether …

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The Many Faces Of Mandates: Beyond Traditional Accommodation Mandates And Other Classic Cases, Yoram Margaloith May 2003

The Many Faces Of Mandates: Beyond Traditional Accommodation Mandates And Other Classic Cases, Yoram Margaloith

San Diego Law Review

This Article discusses the use of mandated benefits and tax-financed programs to enhance the welfare of workers. The author begins by assessing several cases and the basic framework of labor supply and demand that is important for understanding arguments made later in the article. The author then discusses efficiency and the justification for the government's intervention in the labor market. The author then argues that both mandated benefits and tax-financed programs can be equally efficient because they are both susceptible to the same type of deadweight loss. Whether to use one or the other should be determined on a case-by-case …

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The Antitrust-Telecom Connection, Steven Semeraro May 2003

The Antitrust-Telecom Connection, Steven Semeraro

San Diego Law Review

This Article discusses the Telecommunications Act of 1996, which requires local telephone service providers to provide certain services to competitive local exchange carriers, and its relation to the Sherman Antitrust Act. The author begins by examining the Telecommunications Act and the allegations in the telecom-antitrust cases. In these cases, some courts have held that the antitrust laws apply to local telephone companies as if the Telecommunications Act did not exist, other courts have dismissed identical antitrust claims. The author attempts to explain these conflicting results by showing court's reliance on two different lines of doctrine: implied immunity and antitrust state …

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V.40-2, 2003 Masthead May 2003

V.40-2, 2003 Masthead

San Diego Law Review

No abstract provided.

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Motions 2003 Volume 38 Number 6, University Of San Diego School Of Law Student Bar Association Apr 2003

Motions 2003 Volume 38 Number 6, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

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Motions 2003 Volume 38 Number 5, University Of San Diego School Of Law Student Bar Association Mar 2003

Motions 2003 Volume 38 Number 5, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

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With Liberty And Domain Names For All: Restructuring Domain Name Dispute Resolution Policies, Angela L. Patterson Feb 2003

With Liberty And Domain Names For All: Restructuring Domain Name Dispute Resolution Policies, Angela L. Patterson

San Diego Law Review

This Comment explores the current state of domain name dispute resolution policies and examines why these policies fail to adequately address the concerns of those who want to register nontrademarked domains to which they have legitimate claims. The author begins by reviewing the development of the Internet and the domain name registration system and explores the value placed on recognizable domain names. She continues on to review the currently available avenues to resolve domain name disputes and explores the limits of these avenues with respect to nontrademark owning domain name registrants. The author then analyzes current trademark and private dispute …

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Keynote Address, Ralph Nader Feb 2003

Keynote Address, Ralph Nader

San Diego Law Review

In the spring of 2001, the University of San Diego School of Law held a summit to celebrate the twentieth anniversary of the Center for Public Interest Law and to address the present and future of public interest law in the United States. Taking the Offensive presents the panel discussions in four key areas of public interest reform, as well as the background information and research that supported these discussions.

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