Law Commons^™

"Waive" Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness

San Diego Law Review

This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law.

Integrating Spiritual Perspectives With The Law School Experience: An Essay And An Invitation, Lucia Ann Silecchia

San Diego Law Review

This Essay will reflect on the ways in which the traditional life of law schools may be colored by a new emphasis on spirituality. 10 This Essay will not delve into an extensive theological thesis about the definition of spirituality or the practical and philosophical nuances of the spiritual life. Rather, the pages that follow are an invitation to begin a discussion of spirituality within the life of American law schools. This Essay begins with a discussion of spirituality in professional life generally. It will become apparent very quickly that there are difficulties in defining what spirituality is and in …

Alternative Liability In Litigation Malpractice Actions: Eradicating The Last Resort Of Scoundrels, Lawrence W. Kessler

San Diego Law Review

The legal malpractice tort, however, has managed to withstand the winds of legal change. Particularly crucial has been the refusal to apply alternative causation doctrines. The refusal to apply causation doctrines that have been embraced in other areas has significant social effects. As a result, the consumers of legal services receive less protection from the courts than do the consumers of products or medical services.

The Sanctity Of Association: The Corporation And Individualism In American Law, Liam Seamus O'Melinn

San Diego Law Review

American society and law display a deep reverence for the group, as long as it assumes corporate or quasi-corporate form. This reverence is not fleeting; rather, it has deep historical roots. In fact, it was there before the republic came into being and it played a profound role in the founding of the nation. Moreover, these roots are not only traditional, but philosophical and religious as well. This Article explores those roots, with three goals in mind. First, to correct the mistaken notion that American law has historically demonstrated a commitment to the individual at the expense of the group, …

Is Lowering The Age At Which Juveniles Can Be Transferred To Adult Criminal Court The Answer To Juvenile Crime? A State-By-State Assessment

San Diego Law Review

The trend toward "get tough" policies concerning juveniles has swept through just about every state in the nation, affecting younger and younger minors. In Texas in 1997, not long after a tougher law was passed, a fourteen-year-old girl accused of murder became the youngest juvenile ever to stand trial as an adult in Tarrant County. Texas lowered the age from fifteen to fourteen in a 1995 revision of the state's juvenile justice code. In Michigan, an eleven-year-old boy, Nathaniel Abraham, became one of the youngest persons in the United States to be tried for murder as an adult; he allegedly …

Addiction And Causation, Michael Corrado

San Diego Law Review

Is it possible for a compatibilist to capture the notion of a choice that is resistible but very, very hard to resist? And, along the same lines, is it possible for the compatibilist to capture the notion of degrees of responsibility, of greater or lesser moral responsibility? Of course, duress may lessen responsibility, and in general the aversiveness of the alternatives facing an agent may lessen her responsibility for an action: The more aversive the alternatives, the less responsible the agent-or at least the less inclined we are to punish the agent. That way of ranking responsibility is clearly intelligible …

The Brandeis Legacy, Mary Murphy Schroeder

San Diego Law Review

Louis Brandeis was the greatest lawyer of the early twentieth century, and perhaps of the entire century. He was brilliant, driven, charismatic, and absolutely devoted to improving the lives of the common people of the United States. Put in more contemporary terms, he was committed to the notion that technological and economic advances should not widen the gap between the haves and the have-nots. His causes were the environment, citizenship, freedom of expression, quality of life in the workplace, protection against increasing power wielded by large corporations, and protection of individual privacy. All were issues that emerged at the beginning …

Theory's A What Comes Natcherly, Larry Alexander

San Diego Law Review

So what kind of theorizing do we do in law? First, we do empirical, predictive theorizing. We form hypotheses about how the world will be affected by various rules of law, because of their content and form, and by the design of our legal institutions. These hypotheses can be confirmed or falsified. We also form hypotheses about how particular judges will decide future cases, or how legislatures and agencies will react to various proposals. When we do legal history, we reason backwards from effects and form hypotheses about their causes. The second type of theorizing we do is normative. In …

Dropping Slugs In The Celestial Jukebox: Congressional Enabling Of Digital Music Piracy Short-Changes Copyright Holders

San Diego Law Review

In response to the myriad new methods of copying that are emerging from the ongoing digital revolution, Congress has enacted several amendments to copyright law.' These statutes have sought to protect copyright holders in the digital age without chilling the development of new technologies or interfering with consumer access to copyrighted works. Specifically, the Audio Home Recording Act of 1992 ("AHRA") recognized the tremendous potential for piracy created by consumer access to digital audio recording devices. The purpose of the AHRA is not only to prevent infringing acts, but also to compensate copyright holders for the inevitable instances of illicit …

The Honeymoon Is Definitely Over: The Use Of Civil Rico In Divorce

San Diego Law Review

Within the field of family law, civil RICO is making an appearance in the aftermath of divorce cases. This statute appeals to both litigants and lawyers because of its generous civil provisions.8 Money is the motivating factor behind the use of civil RICO. Therefore, a vengeful ex-spouse, and his9 lawyer, have much to gain from pursuing RICO allegations.

Two Aspects Of Law And Theory, Ronald J. Allen

San Diego Law Review

In the last quarter of the twentieth century, there was much ado about law and theory, or the relationship between law and theory, or legal theory, phrases that I take to be synonymous, two aspects of which I want to discuss briefly today. With an introductory sentence like that, the normal expectation would be that the next sentence would somehow work in the phrase "about nothing," and, not wanting to be unpredictable, thus casting doubt on somebody's behavioral theory, I will fulfill this expectation by saying that a fair amount of the ado about legal theory was indeed about nothing. …

Theory Minimalism, Stanley Fish

San Diego Law Review

We must begin with a sense of what theory is, and I shall derive mine from a question Herbert Wechsler often put to his students. "Ask yourself," he would say, "'Would I reach the same result if the substantive interests were otherwise?"" The challenge of the question is to the student who has determined where the right lies in a disputed matter, and who now must demonstrate that, even if every circumstantial particular of the case were varied-if the plaintiff were a woman instead of a man, if the object of hate speech was a descendant of someone who came …

Adequate Special Education: Do California Schools Meet The Test?

San Diego Law Review

This Comment argues that the demands for general education efficacy apply a fortiori to disabled children. This Comment further contends that while special education law based on federal statute may be insufficient to support such accountability, the California Constitution provides a legal basis without further statutory enactments. The basis is found in adequacy assurances of article IX, section 1 of the California Constitution: the Education Clause."

Toward A Theory Of Regulatory Takings For Intellectual Property: The Path Left Open After College Savings V. Florida Prepaid, Shubha Ghosh

San Diego Law Review

This Article argues that an infringement of intellectual property rights by a state government constitutes a regulatory taking, requiring compensation to the intellectual property owner. The regulatory takings doctrine is a controversial one. Almost everyone agrees that if a state government physically takes property from its citizens, the government should compensate the owners. Nevertheless, the proposition that state regulation of its citizens' property requires compensation is not as easy to endorse. All regulation affects property in some way, either by reducing its value or by limiting its use. A requirement of compensation could potentially cripple the functioning of state governments. …

Addressing Inequities In The Collection Of Social Security Taxes For U.S. Citizens Working Abroad

San Diego Law Review

Social Security and Medicare taxes are imposed on employee wages and self-employment earnings prior to retirement. One half of the tax is. paid by the employer and one half by the employee, with the employer's portion being paid out of the general funds of the business and the

employee's portion being subtracted from her wages. With a self- employed individual, the outcome changes. The totality of the tax

remains the same; however, the self-employed individual assumes responsibility for both halves of the Social Security and Medicare taxes!

The same amount of tax is paid, but it is paid completely by …

Deontology At The Threshold, Larry Alexander

San Diego Law Review

In his 1989 law review article, Torture and the Balance of Evils,' later republished as Chapter Seventeen in Placing Blame, Michael Moore declares himself to be a "threshold deontologist." What he means is this: There are some acts that are morally wrong despite producing a net positive balance of consequences; but if the positive balance of consequences becomes sufficiently great-especially if it does so by averting horrible consequences as opposed to merely making people quite well off-then one is morally permitted, and perhaps required, to engage in those acts that are otherwise morally prohibited. Thus, one may not kill or …

Retribution In Criminal Theory, Douglas N. Husak

San Diego Law Review

I will focus on three separate but intimately related dimensions of what I have identified as Moore's central theme. In Part H, I examine his views

about the data from which a theory of the criminal law is to be constructed. In Part I, I discuss his account of the rationale of punishment. In Part IV, I scrutinize his defense of legal moralism as a theory of legislative aim. I express general misgivings about the extraordinarily central place Moore affords retribution in his account of the criminal law as it exists today. I want to stress at the outset, however, …

Masthead

San Diego Law Review

No abstract provided.

Introduction, Emily Sherwin

San Diego Law Review

Recent debate about theory in legal scholarship' has raised more questions about theory and law than it has answered. For example, just what is meant by "theory" in the context of law? Is there a form of theory that is uniquely "legal" theory, or is legal theory merely moral theory applied to law? If there is such a thing as legal theory, does the body of positive law, and particularly the decisions of judges, inform legal theory, or does theory inform law? What, if any, are the justifications for constructing theories of law?

Cultivating The Genetic Commons: Imperfect Patent Protection And The Network Model Of Innovation, Jonathan M. Barnett

San Diego Law Review

This Article enters this debate and argues the following position. Assuming that antitrust authorities persist in certain strategies to impede patent consolidation, the recent introduction of patent rights for certain biotechnological innovations is likely to encourage private investment in the genetic commons and reduce (or, at least, not enhance) the accessibility costs that could stunt technological advance. To reach this conclusion, this Article shows that the two leading theories of patent protection, the "incentive" theory7 and the "prospect" theory,8 do not explain private industry's willingness to sink significant investment capital into highly uncertain biopharmaceutical projects. These theories offer insufficient explanations …

What We Do When We Do What We Do And Why We Do It, Leo Katz

San Diego Law Review

But what exactly am I talking about when I speak of symmetry and asymmetry in law and ethics? It may be clear enough what those notions mean in geometry, but how are they to be understood in law, or

for that matter in ethics, more generally? Let me start with symmetry- its meaning and the benefits of exploring it. Rather than try to define the

term, however, I will offer what I think is a pretty self-explanatory example of the phenomenon as it arises in law and ethics. It is an example that has fascinated me for quite some time: …

Theories Of Areas Of Law, Michael Moore

San Diego Law Review

The topic of this symposium is "theories and the law." Since this is such an enormously broad topic, the first thing to do is to narrow it a bit. As I shall discuss it, the topic is not on the central topic of jurisprudence, which is the theory of law. My topic is theories within our law, rather than theories about the nature of law in general. Often we call such theorizing internal to the law we have, "internal jurisprudence," to be contrasted with an "external jurisprudence" that is about law as such. Within internal jurisprudence, there is still considerable …

Has Affirmative Action Been Negated? A Closer Look At Public Employment, H Lee Sarokin, Jane K. Babin, Allison H. Goddard

San Diego Law Review

First, this Article argues that affirmative action is right and necessary in certain circumstances. Second, it examines whether affirmative action has survived under current case law. Part II.A reviews the Supreme Court decisions that define the test of strict scrutiny in the public employment context. Part II.B discusses the current focus of the Court's debate on affirmative action. Part III looks at how strict scrutiny analysis and the Supreme Court's precedents are being applied by the lower federal courts. Part IV concludes that more guidance is needed from the Supreme Court on the first prong of the strict scrutiny analysis …

A Guide To Challenging Option Repricing, Amanda K. Esquibel

San Diego Law Review

For many years, companies have used stock option plans to attract and keep quality employees and to align employees' interests with those of shareholders.' Stock options give company employees the right to buy a certain number of shares of stock from the company at a predetermined exercise price for a limited period of time. The exercise price is usually at or above the market price of the company's stock at the time the option is issued.

A Primer On The Civil Trial Of A Sexually Violent Predator, Joan Comparet Cassani

San Diego Law Review

Involuntary commitment' for sexually violent predators became the law in California in 1996. This law, the Sexually Violent Predator Act, provides for a civil jury trial.! This trial is unique, since some of the procedural protections afforded a criminal defendant apply. For example, a unanimous jury must find, beyond a reasonable doubt, that the individual is a sexually violent predator.

The Act provides for the treatment of the individual if committed, and carefully crafts the procedures for the mental health evaluation and review process. Unfortunately, the part of the statute that provides for the civil trial is not as tightly …

An Analysis Of California's Common And Statutory Law Dealing With Unsolicited Commercial Electronic Mail: An Argument For Revision, Calvin Whang

San Diego Law Review

This Comment will examine the law governing unsolicited commercial electronic mail in California. Part II details the growth of the Internet and unsolicited commercial electronic mail. Part III examines the law of trespass to chattel as applied to unsolicited commercial electronic mail in California. Part IV examines recent legislative efforts to regulate spam in California. Part V analyzes the implications of the new unsolicited electronic mail legislation in California. Finally, Part VI details some suggested revisions to the California statute dealing with unsolicited commercial electronic mail.

State Constitutionalism And The Domain Of Normative Theory, Daniel B. Rodriguez

San Diego Law Review

Positive constitutionalism means not only describing but also theorizing about elemental questions of constitutional structure and theory. Key positive questions include: Why do certain constitutional forms emerge and survive? What is the role of political choice, by legislators and by citizen voters, in constructing constitutions and constitutional discourse? What is the relationship between constitutionalism and constitutional law? By normative constitutional theory, I mean the critical evaluation of constitutions. The key normative question is: What ought a particular constitution say? Those of us interested in both positive constitutionalism and normative constitutional theory would like to think that we are bringing together …

The Market Power Requirement In Antitrust Rule Of Reason Cases: A Rhetorical History, Mark R. Patterson

San Diego Law Review

Under section 1 of the Sherman Act,' on which this Article will focus, a central position for market power has been mandated neither by statute nor by the Supreme Court. Section 1 refers only to "contract[s] ... in restraint of trade,"' language that suggests no market power requirement. Nor has the Supreme Court imposed any general market power requirement under section 1. To be sure, the Court has imposed market power requirements in certain categories of section 1 cases, but they are only those cases in which the plaintiff proceeds under a per se theory.' Indeed, the Court has on …

A Tale Of Two Counties: Divergent Responses In Los Angeles And Orange County Superior Courts To The Ban On Electronic Recording In California Court Reporters Ass'n V. Judicial Council, Glenn S. Koppel

San Diego Law Review

This Article explores the authority of superior courts to use electronic recording technology to make a verbatim record of superior court proceedings-without express statutory authorization-in the aftermath of the CCRA decisions. Rather than just arguing that the CCRA decisions were wrongly decided, this Article explores ways to narrowly construe the CCRA opinions to permit superior courts and their litigants to use rapidly evolving electronic recording technologies as an alternative to traditional stenographic court reporting.

Masthead

San Diego Law Review

No abstract provided.