Law Commons^™

Note On The Neutral Assignment Of Federal Appellate Judges, Carl Tobias

San Diego Law Review

Neutral Assignment of Judges at the Court of Appeals (Neutral Assignment) substantially increases comprehension of the federal intermediate appellate courts. The most striking aspect of the recent article by Professor J. Robert Brown, Jr. and Ms. Allison Herren Lee is the revelation of new information which strongly suggests that the United States Court of Appeals for the Fifth Circuit did not randomly assign members of the federal bench to three-judge panels which heard cases involving desegregation and that this practice facilitated substantive results which favored integration. The material's release may well provoke controversy; however, Neutral Assignment is much more than …

Ethnography And The Idealized Accounts Of Science In Law, David S. Caudill

San Diego Law Review

n Part I, I confirm the idealizations of science in law and their implications for legal scholarship and practice. In Part II, I describe the ethnographic method used by science studies scholars, with reference to my own ethnographic analysis of interviews with three neuroscientists. I conclude Part II by identifying various social aspects of science that comprise a complex picture of scientific activity. In Part ill, I discuss the implications of ethnomethodology for trial practice, including deposition analysis, Daubert-type hearings, cross-examination techniques, and drafting jury instructions. Part IV addresses anticipated criticisms of my arguments.

Membership Denied: Subordination And Subjugation Under United States Expansionism, Ediberto Roman, Theron Simmons

San Diego Law Review

Despite the allegedly neutral and liberating notions of justice and

equality that are associated with American legal rhetoric, particularly

citizenship law, an examination of America's nineteenth and twentieth

century expansionism reveals that these principles fail to apply to all

persons associated with America. international movements calling for self-determination of colonized peoples

Notwithstanding this nation's role in

can be described as colonies. In an era of self-determination and in the

decade dedicated to the eradication of colonialism, free world and great emancipator of the oppressed has maintained a colonial regime

Masthead

San Diego Law Review

No abstract provided.

California's Duty Of Confidentiality: Is It Time For A Life-Threatening Criminal Act Exception?, Kevin E. Mohr

San Diego Law Review

In August 2001, the House of Delegates of the American Bar Association (ABA) voted in favor of a revision to the duty of confidentiality contained in the ABA's Model Rules of Professional Conduct, a set of ethics rules that has been adopted in some form by over forty states. Specifically, the House voted to broaden the exception in Model Rule 1.6 that permits a lawyer to reveal confidential information of the client to the extent the lawyer reasonably believes

necessary to prevent likely death or substantial bodily harrn.

It is

uncertain whether that vote will have any effect on the …

Masthead

San Diego Law Review

No abstract provided.

Violence, Video Games, And A Voice Of Reason: Judge Posner To The Defense Of Kids' Culture And The First Amendment, Clay Calvert

San Diego Law Review

"We are in the world of kids' popular culture. But it is not lightly to be suppressed."' So wrote Judge Richard A. Posner on behalf of a unanimous three judge panel for the Seventh Circuit Court of Appeals in March 2001 in striking down, on First Amendment grounds, an Indianapolis ordinance that blocked minors' access to video games depicting violence. Judge Posner's erudite opinion could not have come at a more important time-a time when the entertainment industries in the United States seemingly are under government siege and when the media blame game is peaking. The judge's cogent reasoning and …

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules, Timothy D. Chandler, Rafael Gely, Jack Howard, Robin Cheramie

San Diego Law Review

Over the last three decades, there have been significant increases in labor force participation by women. Initially, this increase was fueled by the entry of single, childless women into the labor market. Married women primarily dedicated their efforts to home care concerns. However, in recent years, a new trend has emerged as "the levels of market work undertaken by married women have increased relative to those of unmarried women."

Responsibility In Capital Sentencing, Steven Semeraro

San Diego Law Review

Although modem doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. Two concrete ways to improve it would be to (1) explain the sentencer' s role in the narrative voice, a way of speaking that, at least in American society, appears to be associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences by state appellate courts, bringing the responsibility of state appellate judges in capital cases in line with the responsibility they bear in constitutional cases dealing with analogous mixed questions of fact and law under the First, …

Mixed Signals: The Limited Role Of Comparative Analysis In Constitutional Adjudication

San Diego Law Review

Judges and academics are divided as to whether the resolution of constitutional disputes must turn wholly on domestic inputs or if there is in fact any room in United States constitutional jurisprudence to learn from the experiences of other nations. Objections to the practice

premised upon the assertions that constitutional solutions should derive from purely domestic sources and that fundamental differences in constitutional systems will render attempts to transplant solutions ineffective. The purpose of this discussion is to show (1) that courts do in fact use comparative analysis in the interpretation of the Constitution, (2) that courts use foreign materials …

Internet Gambling: Should Fantasy Sports Leagues Be Prohibited?

San Diego Law Review

This Comment will examine fantasy sports leagues as a form of gambling. Part II considers various federal restrictions on gambling. State perspectives on gambling are addressed in Part III. Policy arguments are presented in Part IV, and practical issues are explored in Part V. Part VI concludes that Internet fantasy sports leagues violate gambling prohibitions. Finally, the Appendix sets out the gambling laws of each state.

Feminist Legal Writing, Kathryn M. Stanchi

San Diego Law Review

Because feminist legal advocates must use legal writing to persuade

their audience and push for change in the law, they must confront the dilemma of whether to follow legal writing conventions and risk altering or losing their feminist message or whether to break from convention and risk losing the legal audience. Feminist legal scholarship, in many different ways, has made great progress in dealing with this dilemma. The focus of this Article, however, is on several pieces of feminist legal scholarship that have confronted the dilemma by pushing the bounds of conventional legal language and legal writing. These pieces, by …

Public Defender's Conundrum: Signaling Professionalism And Quality In The Absence Of Price, Robert J. Aalberts, Thomas Boyt, Lorne H. Seidman

San Diego Law Review

This Essay, the result of an

extensive empirical study in the state of Nevada, attempts to ascertain factors among criminal defendants that may predict how they perceive a level of quality and satisfaction with their lawyers as service providers, as well as policy proposals for improving the perceptions of public defenders.

Why Repeal Of The Death Tax Means The Second Demise Of Substantive Due Process, Paul E. Mcgreal

San Diego Law Review

Death and taxes. For the first two centuries of American democracy, the former has been the province of Providence, the latter the concern of Congress. Congress has focused on the Internal Revenue Code, leaving death to the aging process, human folly, religion, and Darwinian forces. In a stunning power grab, Congress recently upset this order, asserting control over both domains. No longer satisfied to allow life to run its

course, Congress has sought to hasten accrual of the Death Tax. simply, Congress has sanctioned the killing of rich Baby Boomers.

To Breathe, Or Not To Breathe: Passive Alcohol Sensors And The Fourth Amendment

San Diego Law Review

No abstract provided.

Putting The Cart Before The Horse: The Need To Re-Examine Damage Caps In California's Elder Abuse Act*

San Diego Law Review

This Comment addresses what has been and continues to be a very controversial area of the law-damage caps imposed on plaintiffs who bring medical malpractice claims against health care providers in California. Since 1975, the state has restricted these actions as a means of holding down liability insurance premiums and reducing litigation through a package of statutes called the Medical Injury Compensation Reform Act (MICRA). In 1991, the legislature extended these limitations to claims brought under the state's Elder Abuse Act while at the same time providing for enhanced remedies in such actions to encourage litigation. Today, upon showing clear …

Masthead

San Diego Law Review

No abstract provided.

Genes And The Just Society Preface, Arti K. Rai

San Diego Law Review

No abstract provided.

Introduction

San Diego Law Review

No abstract provided.

Genetic Interventions: (Yet) Another Challenge To Allocating Health Care, Arti K. Rai

San Diego Law Review

Much of the existing literature on genetic intervention addresses questions of discrimination or reproductive decisionmaking. Although this book discusses those questions,

it takes as its major focus an issue that is perhaps even more vexing—the issue of how we should, from the standpoint of distributive justice, allocate genetic interventions. In other words, given the wide range of genetic interventions that may become available, how should we divide such interventions? Implicit in this problem is the reality that scarcity will prevent individuals from having access to all genetic interventions that would be of benefit to them. In this brief Essay, I …

Genetic Enhancement, Distributive Justice, And The Goals Of Medicine, Mark A. Hall

San Diego Law Review

In this brief Essay, I focus on chapter 4 of the book’s discussion of the distinction between treatment and enhancement.

This distinction is at the core of many of the most challenging problems of ethics and public policy raised by genetics. This is also the place where there appears to be disagreement or ambivalence among these authors

and where fault

lines appear in their otherwise remarkably united front.

Punishing Reproductive Choices In The Name Of Liberal Genetics, Alexander Morgan Capron

San Diego Law Review

When the four American moral philosophers who individually have already made the most significant contributions to the ethical analysis of contemporary health care and medicine collaborate, it should come as no surprise that their joint effort is a lucid and powerful analysis of the principles that a just and humane society would employ in setting policies about how the new tools of molecular genetics should be used for human betterment. In From Chance to Choice: Genetics and Justice, Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler aimed to steer a middle course between two extreme models. The first …

How Not To End Disability, Janet Radcliffe Richards

San Diego Law Review

When advances in genetic technology offer the chance of preventing or curing disease and disability, it is one thing to recommend caution on the grounds that these obvious benefits may be outweighed by associated harms. It is quite another to deny even that there are benefits to be outweighed, and that attempts to prevent disability by these means should be resisted outright. That, however, is a view that is increasingly widespread in the disability rights movement.

Is Moral Theory Perplexed By New Genetic Technology?, Richard J. Arneson

San Diego Law Review

From Chance to Choice: Genetics and Justice

intelligently addresses difficult issues at the intersection of medical ethics and the theory of justice. The authors Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler repeatedly emphasized their opinion that advances in genetic technology force upon us entirely new ethical questions that previous moral theories lack the resources to resolve.

The claim that

new scientific discoveries render previous moral theories obsolete should be regarded with suspicion. Suspicion should be further aroused when readers note another feature of the authors’ theorizing that neatly fits the claim that we stand at the dawn …

The Ethics Of Genetic Intervention: Human Research And Blurred Species Boundaries, Rebecca Dresser

San Diego Law Review

From Chance to Choice: Genetics and Justice1

is a well-written and tightly argued analysis. This Essay addresses two topics meriting more attention than they received from these authors. First, this Essay considers in greater detail a topic the book briefly addresses—the human research necessary to support clinical use of genetic interventions. What appears as simply a step along the way to clinical benefits may actually present serious impediments. Second, this Essay expands on a point the authors mentioned only in passing. They noted that developments in

genetics are blurring traditional species boundaries. Blurred boundaries between humans and other species raise …

A Rawlsian Approach To Solving The Problem Of Genetic Discrimination In Toxic Workplaces, Robert A. Bohrer

San Diego Law Review

The Human Genome Project (HGP) may well be the beginning of a technological leap that rivals the advent of the Industrial Age.2 The principal goal of the project is to map and fully sequence3

the twenty- four chromosomes that contain the complete genetic contents of a

normal human cell. The human genome consists of twenty-two pairs of chromosomes plus the X and Y chromosomes that determine gender.4 As would be expected for such a technologically adventurous undertaking, the HGP has been accompanied by a substantial outpouring of concern about the ethical, legal, and social issues that will arise from this …

Does Technological Enhancement Of Human Traits Threaten Human Equality And Democracy?, Michael H. Shapiro

San Diego Law Review

This Article outlines some of the moral, legal, and general policy difficulties that societies and individuals will face if technological enhancements via germ line and somatic mechanisms become possible. It identifies and analyzes some of the conceptual structures necessary to explain the nature of these difficulties, suggests some alternative basic scenarios—such as greater or lesser scarcity of technological enhancement resources, impacts on how we perceive each other, and different remediation patterns—and then maps and reverse maps the projected technological developments against the value and legal structures. This Article also describes and comments on what may seem to be, from our …

Reasonable Expectations And The Erosion Of Privacy, Shaun B. Spencer

San Diego Law Review

This Article examines how the prevailing legal conception of privacy facilitates the erosion of privacy. The law generally measures privacy by reference to society’s reasonable expectation of privacy. If we think of the universe of legally private matters as a sphere, the sphere will contract or (at least in theory) expand in accordance with changing social expectations. This expectation-driven conception of privacy in effect establishes a privacy marketplace, analogous in both a literal and metaphorical sense to a marketplace of ideas. In this marketplace, societal expectations of privacy fluctuate in response to changing social practices. For this reason, privacy is …

Deconstructing Binary Race And Sex Categories: A Comparison Of The Multiracial And Transgendered Experience, Julie A. Greenberg

San Diego Law Review

Millions of people are transgendered

and cannot easily be categorized as either male or female. Similarly, millions of people are multiracial and cannot be classified as being of one distinct race. Race classification systems have existed for centuries and have been the subject of extensive commentary and critique for decades. Sex and gender classification systems, on the other hand, have just started to become the subject of litigation in the last half of the twentieth century

and it is only during the last decade that sex classification systems have become the topic of extensive scholarly discussion.

The Purloined Personality: Consumer Profiling In Financial Services

San Diego Law Review

Although almost every sector of the U.S. economy practices consumer profiling,perhaps the most substantive challenge to consumer privacy is found in the activities surrounding the use and disclosure of consumer transaction data by the financial services industry. For that reason, this Comment focuses exclusively on consumer profiling in the context of the financial services sector, defined as banks, credit card issuers, brokerages, and insurance companies.