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Full-Text Articles in Law
Crawford And The Forfeiture By Wrongdoing Exception, Joan Comparet-Cassani
Crawford And The Forfeiture By Wrongdoing Exception, Joan Comparet-Cassani
San Diego Law Review
The doctrine of forfeiture by wrongdoing was carved out as an exception to the standard for the admissibility of testimonial hearsay evidence laid down in Crawford v. Washingtom . Since Crawford , the California Supreme Court granted review in two cases, People v. Giles and People v. Jiles , which applied the doctrine of forfeiture by wrongdoing. The forfeiture doctrine was originally formulated to require the accused commit an intentional act to prevent a witness from testifying, thus proving that the doctrine's nature is based on the equitable principle that no person shall profit from wrongful conduct. By examining the …
Municipal Separate Storm Sewer System (Ms4) Regulation Under The Federal Clean Water Act: The Role Of Water Quality Standards?, John H. Minan
Municipal Separate Storm Sewer System (Ms4) Regulation Under The Federal Clean Water Act: The Role Of Water Quality Standards?, John H. Minan
San Diego Law Review
The Clean Water Act, the primary federal statute regulating water pollution, requires municipal storm water discharge permits, under the National Pollutant Discharge Elimination System program, to include provisions controlling discharges from municipal separate storm sewer systems. This article questions whether the Clean Water Act's maximum extent practicable standard is the only statutory standard given the current trend toward compliance with state water quality standards independent of the maximum extent practicable standard, and whether the Clean Water Act superseded the state water quality standards. State water quality standards act as a water quality threshold, which are reviewed often by the states …
After Roper V. Simmons: Keeping Kids Out Of Adult Criminal Court, Ellen Marrus, Irene Merkel Rosenberg
After Roper V. Simmons: Keeping Kids Out Of Adult Criminal Court, Ellen Marrus, Irene Merkel Rosenberg
San Diego Law Review
When children kill, as they always have and probably always will, the state must juggle two distinct and oftentimes conflicting concerns: its police power and its parens patriae interest. These concerns are not, however, mutually exclusive. There is a delicate balance that must be maintained. Clearly, the state must incapacitate and punish children who commit serious criminal acts, but, as Simmons says, that does not mean that minors can be executed, nor, as the Authors maintain, be consigned to living death behind bars without any hope of respite. The legal system must somehow be adjusted for children.
The Unitary Waters Apprach: The Government's Misguided Attempt To Limit The Reach Of The Clean Water Act, Brad W. Blank
The Unitary Waters Apprach: The Government's Misguided Attempt To Limit The Reach Of The Clean Water Act, Brad W. Blank
San Diego Law Review
This Comment will, first, determine whether the government's unitary waters approach is a viable interpretation of the SWA. Second, it will explore what characteristics should be considered to determine whether two water bodies are"meaningfully distinct." Finally, this Comment will explore the possible consequences of applying the NPDES program to water transfers between two water bodies.
The Comparative Catalyst: Reforming Graham V. Daimlerchrysler, Kevin Logan
The Comparative Catalyst: Reforming Graham V. Daimlerchrysler, Kevin Logan
San Diego Law Review
This Casenote examines the California Supreme Court's decision in Graham v. DaimlerChrysler concluding that the adoption of a stricter definition of "public interest" litigation and a comparative catalyst rule will serve to stem the flood of unproductive lawsuits in the high court's ill-conceived decision will otherwise unleash.
Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson
Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson
San Diego Law Review
The state offers marriage legal and financial support. This article questions whether the state is justified in supporting and promoting marriage by looking at recent studies that found that marriage produces differences in investment and well-being for children in marital households compared to other children. These studies isolated the value of marriage and identified the connection, if any, between supporting marriage and supporting children. The Manning and Lamb study evaluated outcomes for children in non-marital households, whereas, the Hoefferth and Anderson study examined different investments in marital and non-marital children by biological fathers. The two studies found a marriage advantage, …
The Meaning Of Marriage: State Efforts To Facilitate Friendship, Love, And Childrearing, Richard Arneson
The Meaning Of Marriage: State Efforts To Facilitate Friendship, Love, And Childrearing, Richard Arneson
San Diego Law Review
The Prioritarian Consequentialist approaches state regulation of marriage from a standpoint opposed to the Lockean Libertarian natural rights tradition. The prioritarian approach favors state regulation of marriage that induces people to make positive cost-benefit arrangements, whereas the lockean avers any coercive restriction of people's liberty. Taking a prioritarian consequentialist perspective, this article discusses the appropriate state policy regarding private relationships involving love, sex, and childrearing, and assesses the meaning of marriage and possible alterations to marriage that would lead to consequences on the quality of human life. The prioritarian consequentialist supports state policies that produce the best outcome for people's …
A Response To Professor Bix, Robert F. Nagel
A Response To Professor Bix, Robert F. Nagel
San Diego Law Review
Legal academics study the legal process to understand how lawyers think and act. This article builds on Professor Bix by focusing on the influence lawyers and legal academics can have on the marriage debates. Lawyers and legal academics influence the marriage debates using their vocabulary, which allows them to craft solutions in a language alien to the general public, and render the marriage debate less understandable. Lawyers and legal academics influence the marriage debates through adversarial argumentation, which causes them to destabilize and shift settled understandings, and render the marriage debate distorted and impoverished. Although Professor Bix advocates deference on …
What Is The "Meaning" Of "Marriage"?, Connie S. Rosati
What Is The "Meaning" Of "Marriage"?, Connie S. Rosati
San Diego Law Review
There is legitimacy to the conservative approach that goes beyond looking at the impact on people's welfare. This article responds to Professor Arneson by offering a different framework to investigate the underlying theoretical values behind appropriate state policies regarding private relationships. Neither the prioritarian consequentialist, nor the lockean libertarian captures the other side of the marriage debate, that is, the traditional ideal. The state’s interest in fostering the conservative, traditional marriage relationships begins to emerge through the author's assumptions that Kantian ethics is correct, that social stability depends on others—inviolate value, and that through love one can apprehend the value …
Who's Afraid Of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy From The History Of Polygamy, Cheshire Calhoun
Who's Afraid Of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy From The History Of Polygamy, Cheshire Calhoun
San Diego Law Review
Attention to polygamy can strengthen the case for same-sex marriage. Both the historical debate on polygamy and the current debate on same-sex marriage concentrate on finding the best social response for the failure of conventional marriage to serve its purpose. The argument for traditional marriage conflicts with the Judeo-Christian tradition and a liberal democracy. Contrary to traditionalist arguments, polygamy and pluralistic relationships are a part of the Judeo-Christian tradition. Additionally, a liberal democracy is designed to protect an individual?s right to pursue a pluralistic way of life. Under a liberal theory, the state should remain neutral and allow individuals to …
Why The Federal Marriage Amendment Is Necessary, Christopher Wolfe
Why The Federal Marriage Amendment Is Necessary, Christopher Wolfe
San Diego Law Review
The Federal Marriage Amendment seeks to confine marriage to one man and one woman. This article supports the Federal Marriage Amendment because the Amendment reinforces the original design of the Constitution in the face of unchecked judicial review power and the expansion of sexual autonomy. The Federal Marriage Amendment reinforces the idea that the people of the states, not the judiciary, resolve social policy. Also, the Amendment supports a presumption in favor of state legislation on marriage. Although conservatives, such as Yoo and Vulchev, state that the Federal Marriage Amendment opposes federalism, this author contends that the Amendment would preserve …
Introduction To The 2005 Editors’ Symposium: The Meaning Of Marriage, Larry Alexander
Introduction To The 2005 Editors’ Symposium: The Meaning Of Marriage, Larry Alexander
San Diego Law Review
Professor Alexander provides a brief introduction to the 2005 Editors' Symposium titled "The Meaning of Marriage."
Everything I Know About Marriage I Learned From Law Professors, Brian H. Bix
Everything I Know About Marriage I Learned From Law Professors, Brian H. Bix
San Diego Law Review
Lawyers and legal academics routinely offer their views on social and political issues. This article considers whether legal academics add any special expertise to the current marriage debates, or whether legal academics should defer to others better suited to answer the questions raised in the marriage debates. The marriage debates involve questions concerning the regulation and definition of marriage, the legal requirements for marriage, and the presence of children. Because of their familiarity with legal analysis, family law doctrine and practice, legal academics and lawyers offer answers and views not available in the rhetoric of the political and media debates …
Who Knows?, Michael B. Kelly
Who Knows?, Michael B. Kelly
San Diego Law Review
Even though other academic disciplines may provide better research and analysis for the discussion of marriage law, lawyers and legal academics can play a role in the marriage debates. This article responds to Professor Bix by discussing the roles lawyers and legal academics can play in the current marriage debates. The roles of lawyers vary from overcoming parochialism and broadening the inquiry outside specific academic disciplines to recognizing the areas that need investigating and synthesizing the results. The roles of legal academics stretch from helping “set the agenda” for research, that is, raising the issues and asking the important questions …
Privileging The Privileged? Child Well-Being As A Justification For State Support Of Marriage, Laura S. Adams
Privileging The Privileged? Child Well-Being As A Justification For State Support Of Marriage, Laura S. Adams
San Diego Law Review
State support of marriage should rest on more than the transformative power of marriage. This article responds to Professor Wilson by questioning whether marriage best promotes child well-being and whether child well-being alone is a sufficient justification to rest state support of marriage. Children of marital households are usually whiter, wealthier, and better educated. Thus, state support of marriage maximizes the welfare of already privileged children at the detriment of less privileged children. Without state support of marriage, social welfare policy can be redirected toward the direct support of children. While Wilson advocates the connection between supporting marriage and supporting …
Does Marriage Make People Good Or Do Good People Marry?, Kimberly A. Yuracko
Does Marriage Make People Good Or Do Good People Marry?, Kimberly A. Yuracko
San Diego Law Review
Social norms, not marriage, are transformative. This article considers whether marital norms like stability, commitment, and sexual fidelity are responsible for positive parenting effects and child well-being, or whether the institution of marriage is responsible. Marriage does not transform people into good spouses and good parents. Instead, people must be transformed before entering the institution of marriage. While Wilson believes that state supported marriage can spread social norms and values that benefit children, this author concludes that state supported marriage should not benefit the most advantaged, but should reinforce social norms and values and provide state benefits to all parents, …
Why The Federal Marriage Amendment Is Not Only Not Necessary, But A Bad Idea: A Response To Christopher Wolfe, Michael Perry
Why The Federal Marriage Amendment Is Not Only Not Necessary, But A Bad Idea: A Response To Christopher Wolfe, Michael Perry
San Diego Law Review
The Federal Marriage Amendment does more than prevent same-sex couples from having marital status. In response to Professor Wolfe, this article contends that the Federal Marriage Amendment prevents state courts and state legislatures from choosing to grant marital status to same-sex couples. Gender complimentarity, the heart of Professor Wolfe's argument and the Federal Marriage Amendment's basis, is too controversial and problematic to bind future generations from allowing same-sex marriage. Even if society is currently opposed to same-sex marriage, this author concludes that the U.S. Constitution should not be amended in a way that prevents future generations from deciding whether to …
Three Tensions And One Omission, In The Case For The Federal Marriage Amendment, Donald A. Dripps
Three Tensions And One Omission, In The Case For The Federal Marriage Amendment, Donald A. Dripps
San Diego Law Review
Sam-sex marriage is a hotly contested social issue. This Article responds to Professor Wolfe by analyzing three tensions that premise the case for the Federal Marriage Amendment. The first tension portrays marriage as both fragile and fundamental. However, the long-standing institution of marriage faces more serious challenges than same-sex marriage. Therefore, if social changes, violence, and disease have not weakened marriage, same-sex marriage likely will not do the institution any grave damage. The second tension claims that activist judges threaten traditional marriage, thus necessitating its definition in Federal Constitutional law. However, the new Federal Marriage Amendment will be left to …
Liberals And Libertines: The Marriage Question In The Liberal Political Imagination, Nomi Maya Stolzenberg
Liberals And Libertines: The Marriage Question In The Liberal Political Imagination, Nomi Maya Stolzenberg
San Diego Law Review
Liberalism and marriage are not easily separated from anti-libertine and libertine ideas. This article frames the meaning of marriage question by comparing Tolstoy’s anti-libertine novella, The Kreutzer Sonata with Roth?s libertine novella, The Dying Animal. Both novellas impale marriage and liberalism to reveal the strains of ambivalence toward freedom of love, sex, and personal attachments. In Tolstoy’s novella, Pozdnyshev reviles marriage because it is nothing more than licensed prostitution. In Roth’s novella, Kepesh despises marriage because it dampens sex and subjects the individual to constraints. The author offers two readings of these novellas, one that emphasizes the boundaries between liberal, …
Sexuality And The "System Of Liberty": Comment On Stolzenberg, William A. Galston
Sexuality And The "System Of Liberty": Comment On Stolzenberg, William A. Galston
San Diego Law Review
Marriage and liberal democracy are forms of ordered liberty, one standing between sexual license and ascetics, and the other standing between anarchy and oppression. The relationship between liberal democracy and sexual liberty can be framed using four strategies devised by the liberal democratic project to limit the scope of personal freedom. This article places Stolzenberg's theory of love and liberty within the fourth strategy, which places limits on individual conduct through personal development and perfection. The author concludes that Stolzenberg is too bold for resting ordered sexual liberty on love, and suggests that the ultimate test for any form of …
Polygamy And Same-Sex Marriage: A Response To Calhoun, Samuel C. Rickless
Polygamy And Same-Sex Marriage: A Response To Calhoun, Samuel C. Rickless
San Diego Law Review
Support for legalizing same-sex marriage can be achieved without supporting the case for polygamy. This article responds to Professor Calhoun by raising objections to Calhoun's three main points. Polygamy does not strengthen the case for same-sex marriage because polygamy has not achieved any cultural significance equaling monogamy. Advocating the state to adopt a pluralistic, contractual approach to marriage overlooks the fact that the liberal state's role is not only to enforce but also to regulate private contracts. Polygamy is structurally problematic because it exacerbates the crises marriages face. Because same-sex marriages do not suffer from the same structural problems polygamous …
Thinking About Polygamy, Sanford Levinson
Thinking About Polygamy, Sanford Levinson
San Diego Law Review
The prohibition of same-sex marriage is no more defensible than the prohibition on other marital forms. This article enhances Professor Calhoun's proposal for polygamy by offering another reason to advocate pluralistic conceptions of marriage. If marriage is an institution focused on child-rearing and taking care of ailing partners, then polygamy offers a strong argument for state advocated pluralistic marital forms. The author concludes that Calhoun provides a necessary broader concept of marriage by suggesting a pluralistic approach as to what should count as a legally recognized marriage.
The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax
The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax
San Diego Law Review
Thus far, there has been no coherent, secular elucidation of the opposition to same-sex marriage. This article attempts to develop a consistent position by applying the traditionalist and rationalist views of Edmund Burke and Michael Oakeshott to the same-sex marriage debate, while questioning whether traditional marriage should be changed to include same-sex unions. Burke and Oakeshott represent the conservative approach that advocates an adherence to tradition in the face of change. Through developing this conservative approach, this article seeks a heuristic, in the form of legislative change reflecting a majority view, for when society should accept change. Although an answer …
Traditionalism And Rationalism In The Courts, Gail Heriot
Traditionalism And Rationalism In The Courts, Gail Heriot
San Diego Law Review
Same-sex marriage might pose an unbridgeable issue between rationalist and traditionalist thinking. This article responds to Professor Wax by fitting the legislature and courts into Wax's rationalist/traditionalist paradigm. Like the traditionalist, the court must be cautious, conservative, and avoid egregious errors. The court must decide which party legal tradition already supports. In contrast, the legislature can be viewed as a conduit for rationalist ideas. Like the rationalist, the legislature can break with tradition and choose competing legal reforms that will improve society. Thus, the author concludes that the legislature, not the courts, should decide same-sex marriage issues because when courts …
Tradition And The Law: A Response To Wax, Dana Nelkin
Tradition And The Law: A Response To Wax, Dana Nelkin
San Diego Law Review
Professor Wax provides an acute, secular conservative view addressing same-sex marriage. This article responds to Professor Wax by raising several questions. If the majority of Americans are not inclined to social change when it comes to marriage, this article questions why Wax gives more weight to Burke's faith in tradition over reason than to the particular heuristic that arises from his rationale. Though Wax constructs an opposition to same-sex marriage, this article questions whether Burke and Oakeshott's rationale would meet this standard. Further, this article questions Wax's assessment of the conservative approach's outcome. In conclusion, however, the author favors a …
Marriage, Pluralism, And Change: A Response To Professor Wax, Maimon Schwarzschild
Marriage, Pluralism, And Change: A Response To Professor Wax, Maimon Schwarzschild
San Diego Law Review
There is no formula for assessing social change and resolving the traditional, conservative opposition to same-sex marriage. To augment Professor Wax's argument, this article offers a solution to the current marriage debate. Under a value pluralism approach, a solution to same-sex marriage would entail enacting different state laws that reflect diverse values. Value pluralism suggests that there are competing and conflicting ideals in life, none of which can be reduced and answered consistently. However, value pluralism ushers in other uncertainties. This author concludes that a successful case for same-sex marriage will not arise through a formula, but rather through persuading …
Metaphysics For The Marriage Debate, Janet Radcliffe Richards
Metaphysics For The Marriage Debate, Janet Radcliffe Richards
San Diego Law Review
The debate concerning what marriage is and what marriage ought to be is confused by conflicting ideas of natural law. John Stuart Mill sees law as a means by which to improve a universe with no natural moral order, whereas James Fitzjames Stephen views law as a means to correct that which is morally against nature. This article focuses on understanding a morally neutral working of nature, which requires looking past something's moral desirability, and devising what form social arrangements, like marriage, should take. Once the ideas of natural law, together with moral goodness, are abandoned, and ideas discussing the …
Natural Law And Evolutionary Conservatives: Comments On Janet Radcliffe Richards, Matt Zwolinski
Natural Law And Evolutionary Conservatives: Comments On Janet Radcliffe Richards, Matt Zwolinski
San Diego Law Review
Even though social and political institutions continue to develop and evolve, natural law should not be abandoned. Instead social institutions should change to remedy or compensate for nature's moral defects. The imperceptibility of justifications for marriage is a poor reason to think traditional, monogamous marriage has no justification and abandon it for another form. In response to Professor Radcliffe-Richards, this article recognizes traditional marriage's emergence and continuance through the evolutionary process as evidence that marriage does a better job than any alternative institution. Any institution that emerges from a cultural evolution in peaceful, stable society has demonstrated its fitness. The …