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Articles 1 - 30 of 46
Full-Text Articles in Law
Motions 2008 Volume 44 Number 3, University Of San Diego School Of Law Student Bar Association
Motions 2008 Volume 44 Number 3, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Brain Drain, Fernando R. Teson
Brain Drain, Fernando R. Teson
San Diego Law Review
This Article argues against this conventional view. Most of the time there is nothing unfair about the brain drain, whether one considers it from the standpoint of the emigrant, the source country, or the host country. Critics of the brain drain make problematic empirical and philosophical claims. The empirical assumption of the critics, that the brain drain invariably hurts developing countries, is controversial. While a number of authorities endorse the conventional view that the brain drain hurts source countries, a contrarian literature suggests that the brain drain may help those left behind - that there is, in fact, a brain …
Immigration And Political Equality, Michael Blake
Immigration And Political Equality, Michael Blake
San Diego Law Review
The act of immigration alters several forms of human relationship simultaneously. It represents a change in physical location and so alters the relationship between persons represented by geographic concepts such as territory and property. In immigrating, immigrants acquire a new place in the world that they may understand, in some sense of the word, as their own. Immigration also alters a political relationship insofar as the immigrant acquires a new political status in virtue of that new home in the world. The immigrant ought to be understood as creating through the act of immigration a new set of relationships to …
Equal Justice: Comment On Michael Blake's Immigration And Political Equality, Lori Watson
Equal Justice: Comment On Michael Blake's Immigration And Political Equality, Lori Watson
San Diego Law Review
What does justice require in regards to immigration policy? This question presses upon us-citizens of developed, Western democracies-with a profound degree of moral urgency. The number of people seeking to immigrate into the world's liberal democracies is only likely to increase in the foreseeable future; immigration due to the impact of global warming, armed conflict, and food shortages, just to name a few precipitous causes, is expected to increase dramatically in the next generation. Add to this the fact that those groups most disadvantaged by global inequality, women in particular, tend to bear the impact of such causes to a …
The Morality Of Immigration Policy, Peter H. Schuck
The Morality Of Immigration Policy, Peter H. Schuck
San Diego Law Review
In Part I, I discuss five kinds of deontological arguments that a moralist might advance in debating the ideal nature of our immigration policy. In Part II, I take a more instrumentalist-consequentialist approach to immigration policy analysis. Before doing so, however, I briefly note some of the familiar methodological and cognitive limitations of applying this approach to complex public policy issues of this kind, limitations that remind us of the irreducible importance of normative considerations and judgments to such policy assessments. I then go on to identify the three main sets of empirical controversies that figure most prominently in immigration …
Immigration, Political Community, And Cosmopolitanism, Thomas Christiano
Immigration, Political Community, And Cosmopolitanism, Thomas Christiano
San Diego Law Review
In this Article, I want to suggest one important way to take the above issues seriously that is consistent with a thoroughgoing cosmopolitanism. The idea develops a consideration that has been discussed, but not sufficiently explored, by some cosmopolitans. It starts from the observation that one can be a moral cosmopolitan without being a political cosmopolitan in the sense of advocating for a global political community in the near-term future. To be sure, given the role of the political community in establishing justice among persons, it seems clear that in the long term, moral cosmopolitans must hope for a global …
Introduction To The 2008 Editors' Symposium: National Borders And Immigration, Larry Alexander
Introduction To The 2008 Editors' Symposium: National Borders And Immigration, Larry Alexander
San Diego Law Review
The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2008 Editors' Symposium of the San Diego Law Review.
In Search Of Market Discipline: The Case For Indirect Hedge Fund Regulation, Paul M. Jonna
In Search Of Market Discipline: The Case For Indirect Hedge Fund Regulation, Paul M. Jonna
San Diego Law Review
Part I of this Comment will provide an overview of hedge funds, describe the failure of direct regulation of hedge funds, and analyze the failure of free market restraints. Part II will discuss the theory of indirect regulation, compare and contrast it to direct hedge fund regulation, and apply the theory of indirect regulation to hedge funds. Part III will discuss the mechanics of the proposed indirect regulatory scheme which places the regulatory focus on market participants. This Part will also explain how pension funds fit into an indirect framework and then offer an international solution to the task of …
Motions 2008 Volume 44 Number 2, University Of San Diego School Of Law Student Bar Association
Motions 2008 Volume 44 Number 2, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Motions 2008 Volume 44 Number 1, University Of San Diego School Of Law Student Bar Association
Motions 2008 Volume 44 Number 1, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Economic Liberties And The Original Meaning Of The Constitution, James W. Ely Jr.
Economic Liberties And The Original Meaning Of The Constitution, James W. Ely Jr.
San Diego Law Review
This Article examines the waxing support for the ideology and practice of economic liberty in the founding era. It points out that Americans of the late 18th century increasingly challenged British trade restrictions as well as long-accepted governmental regulation of the economy, raising both practical and philosophical objections. The paper considers various aspects of the colonial economy, including wage controls, regulations governing the price of bread and meat, the establishment of public markets, changes in land and inheritance laws, land speculation, and the growth of contracting in a market economy. It also probes the impact of the Revolutionary War on …
The Constitution Of Economic Liberty, John Harrison
The Constitution Of Economic Liberty, John Harrison
San Diego Law Review
Section I of this Article presents a positive account of the Constitution based on descriptive claims that I hope are relatively uncontroversial. It is positive in this sense: it provides an explanation of the Constitution in terms of the purposes that would have led reasonable drafters to produce it. As the topic of this symposium is the constitutional protection of economic liberty, I ask how a reasonable group of drafters, at the time the Constitution's provisions were written, could have adopted those provisions in order to foster a free economy. That produces an account of how the Constitution was designed …
Originalism And Regulatory Takings: Why The Fifth Amendment May Not Protect Against Regulatory Takings, But The Fourteenth Amendment May, Michael B. Rappaport
Originalism And Regulatory Takings: Why The Fifth Amendment May Not Protect Against Regulatory Takings, But The Fourteenth Amendment May, Michael B. Rappaport
San Diego Law Review
This Article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings. In this Article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such …
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
San Diego Law Review
It is thus as an armchair originalist that I pose three questions about the use of history to support the dominant academic view that the compensation requirement of the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property by the government. This position, which I will refer to as the "standard account" or "standard historical account," certainly has attracted forceful dissents in the academy, most notably by the authors featured in this Symposium issue. The view that Takings Clause protection against so-called regulatory takings is ahistorical, however, is commonly accepted enough to …
Human Law, Higher Law, And Property Rights: Judicial Review In The Federal Courts, 1789-1835, John F. Hart
Human Law, Higher Law, And Property Rights: Judicial Review In The Federal Courts, 1789-1835, John F. Hart
San Diego Law Review
Three kinds of innovation are commonly associated with the early federal courts: establishing the institution of judicial review without any clear authorization for doing so, using judicial review to define property rights more expansively than would have been anticipated by contemporaries, and employing fundamental principles derived from natural or "higher" law for this purpose. I will argue that the early federal courts were far less innovative in these three respects than most scholars have supposed. First, the Framers of the Federal Constitution seem to have anticipated that the new federal courts would exercise the power of judicial review, and to …
Blackstone's Commentaries And The Privileges Or Immunities Of United States Citizens: A Modest Tribute To Professor Siegan, Eric R. Claeys
Blackstone's Commentaries And The Privileges Or Immunities Of United States Citizens: A Modest Tribute To Professor Siegan, Eric R. Claeys
San Diego Law Review
This Article was prepared for a conference on Economic Liberties and the Original Meaning of the Constitution at the University of San Diego School of Law. The Article sheds light on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment by canvassing foundational acts of Parliament, colonial charters, constitutional provisions, and treatises referring to privileges or immunities from the seventeenth century through the mid-nineteenth century. Of these sources, the central one is Blackstone's Commentaries on the Law of England, and its discussion of the privileges or immunities of English subjects. Blackstone uses "privileges" and "immunities" to …
Property Rights, Public Use, And The Perfect Storm: An Essay In Honor Of Bernard H. Siegan, Richard A. Epstein
Property Rights, Public Use, And The Perfect Storm: An Essay In Honor Of Bernard H. Siegan, Richard A. Epstein
San Diego Law Review
My task in this Article is to show the wisdom of the Siegan position by stressing what happens when courts decide systematically to ignore it in favor of a constitutional view that is far closer to that of Robert Bork insofar as it gives the legislature free reign over both economic liberties and property rights. I cannot do this with respect to the full range of issues that crop up under these two capacious heads. But it is possible to show how a wide range of unsound judicial decisions have created a perfect storm in land use regulation that has …
Take-Ings, William Michael Treanor
Take-Ings, William Michael Treanor
San Diego Law Review
The word property had many meanings in 1789, as it does today, and a critical aspect of the ongoing debate about the meaning of the Fifth Amendment's Takings Clause has centered on how the word should be read in the context of the Clause. Property has been read by Professor Thomas Merrill to refer to "ownership" interests, by Richard Epstein in terms of a broad Blackstonian conception of the individual control of the possession, use, and disposition of resources, by Benjamin Barros as reflective of constructions through individual expectations and state law, and by me as physical control of material …
Originalism: Lessons From Things That Go Without Saying, Robert W. Bennett
Originalism: Lessons From Things That Go Without Saying, Robert W. Bennett
San Diego Law Review
After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who …
Foreword, Christina Clemm
Foreword, Christina Clemm
San Diego International Law Journal
The authors of Volume 9: Issue 2 of the San Diego International Law Journal discuss a myriad of issues, tackling emerging and pressing problems in international law. Three articles discuss different aspects of international investment in real estate. The others discuss remedies for victims under international and national law; the limits imposed on rule against double jeopardy in the United States, United Kingdom, and potentially other countries; and the possibility of defamation liability of Internet and global publishers in foreign courts.
Acquisition Of Real Estate In Mexico By U.S. Citizens And American Companies, Jorge A. Vargas
Acquisition Of Real Estate In Mexico By U.S. Citizens And American Companies, Jorge A. Vargas
San Diego International Law Journal
Buying real estate in Mexico, or enjoying the beneficiary rights through a real estate trust, known in Mexico as fideicomiso, involves a considerable amount of money and effort. One must take into account that this legal transaction is executed in Mexico in accordance with Mexican law-a foreign legal system belonging to the civil legal tradition, contrasted by the U.S. legal system derivative of the common law tradition-and recognize that Americans and U.S. legal entities are typically quite unfamiliar with Mexican law. This Article provides a complete overview of the process of acquiring real estate in Mexico by Americans and U.S. …
Victims And Promise Of Remedies: International Law Fairytale Gone Bad, Sanja Djajic
Victims And Promise Of Remedies: International Law Fairytale Gone Bad, Sanja Djajic
San Diego International Law Journal
The aim of this Article is to examine such developments and the current availability of remedies for human rights violations in general. The Author will also examine the appropriateness of such remedies and opportunities to pursue them. The Article starts by identifying remedies in international law. This is followed by a case study and analysis of attempts by several national judiciaries to grapple with remedies prescribed by international law, against the background of international and national remedies. In the course of examining the reasons for an inadequate remedial structure, the Article will focus on several national cases. They will illustrate …
Title Insurance In Mexico: A Necessary Protection, Duplicative Expense, Or Something In Between, Christina Clemm
Title Insurance In Mexico: A Necessary Protection, Duplicative Expense, Or Something In Between, Christina Clemm
San Diego International Law Journal
This Comment is written for those interested in buying property in Mexico and for the professionals who advise them. It begins by analyzing whether title insurance companies provide a necessary service for those purchasing property in Mexico. This section of the Comment addresses issues related to the protections afforded by Mexican law and whether title insurance is duplicative in light of those protections. It also discusses another option for a buyer, obtaining an opinion from a Mexican attorney. It goes on to analyze whether having a title insurance company maneuver the Mexican courts is a justification for its purchase. It …
Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant
Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant
San Diego International Law Journal
This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …
Retrying The Acquitted In England Part Ii: The Exception To The Rule Against Double Jeopardy For Tainted Acquittals, David S. Rudstein
Retrying The Acquitted In England Part Ii: The Exception To The Rule Against Double Jeopardy For Tainted Acquittals, David S. Rudstein
San Diego International Law Journal
Parliament enacted a statute in 1996 intended to limit the double jeopardy bar in some situations in which the defendant obtained an acquittal through improper means, thereby permitting the government to retry the person for the same offense of which he previously was tried and acquitted. The statute, part of the Criminal Procedure and Investigations Act 1996, allows a retrial when an individual's acquittal was tainted, which, under the statute, means an acquittal resulting from interference with, or intimidation of, a juror, witness, or potential witness. In allowing a retrial in such circumstances, the statute creates an exception to the …
The Proliferation Of Global Reits And The Cross-Borderization Of The Asian Market, Julius L. Sokol
The Proliferation Of Global Reits And The Cross-Borderization Of The Asian Market, Julius L. Sokol
San Diego International Law Journal
After a brief discussion on the history of REITs, this Article goes on to analyze their importance and role within the global and Asian economy. Next, the underlying motivations for legal amendments to the REIT structures are discussed, as well as the socio-economic benefits associated with coordinating liberal REIT legislation throughout Asia. Subsequently, this article analyzes the various regulatory aspects of the regimes in Japan, Singapore, Hong Kong, South Korea, Thailand and Malaysia. In exploring their shortcomings, comparisons are made to the highly successful United States REIT structure. Given the history of our nation's regime, it goes without saying that …
Preparing Law Students For Disappointing Exam Results: Lessons From Casey At The Bat, Grant H. Morris
Preparing Law Students For Disappointing Exam Results: Lessons From Casey At The Bat, Grant H. Morris
San Diego Law Review
It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. In the fall semester of their first year, students are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process-they are depressed and disengaged. They suffer a …