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Conversations In Legal Education: Herbert Lazerow, December 22, 2005, Herbert Lazerow

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Herbert Lazerow, December 19, 2005, Herbert Lazerow

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Herbert Lazerow, December 5, 2005, Herbert Lazerow

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: C. Hugh Friedman, November 14, 2005, C. Hugh Friedman

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Herbert Lazerow, November 11, 2005, Herbert Lazerow

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Sarah Smith Velman Tintor, November 8, 2005, Sarah Smith Velman Tintor

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: C. Hugh Friedman,October 27, 2005, C. Hugh Friedman

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Herbert Lazerow, October 25, 2005, Herbert Lazerow

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Sarah Smith Velman Tintor, October 25, 2005, Sarah Smith Velman Tintor

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: C. Hugh Friedman,October 6, 2005, C. Hugh Friedman

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: C. Hugh Friedman, September 30, 2005, C. Hugh Friedman

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Frank Engfelt, June 13, 2005, Frank Engfelt

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Frank Engfelt, June 7, 2005, Frank Engfelt

Conversations in Legal Education

No abstract provided.

Conversations In Legal Education: Frank Engfelt, June 3, 2005, Frank Engfelt

Conversations in Legal Education

No abstract provided.

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

The Chief Prosecutor, Sai Prakash

University of San Diego Public Law and Legal Theory Research Paper Series

Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite …

Legal Scholarship As Resistance To 'Science', Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing “Why We Write?”, considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the “scientific” worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.

Overcriminalization, Discretion, Waiver: A Survey Of Possible Exit Strategies, Donald A. Dripps

University of San Diego Public Law and Legal Theory Research Paper Series

In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its …

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

University of San Diego Public Law and Legal Theory Research Paper Series

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

Criteria Of International Tax Policy, Herbert I. Lazerow

University of San Diego Law and Economics Research Paper Series

Professor Joseph Sneed a generation ago developed seven macro-criteria for evaluating income tax changes. This paper asks whether those criteria are useful in the general field of international income tax. I conclude that Adequacy, Practicality, Equity, and Free Market Compatibility are important internationally, as is a new criterion, Balance-of-payments Enhancement, while the criteria of Reduced Economic Inequality, Stability and Political Order do not figure prominently in international tax.

Corporate Ethics In The Health Care Marketplace, Lynne Dallas

University of San Diego Law and Economics Research Paper Series

Consider three examples of problematic corporate decision making: first, in 2002, employees were less likely to have employer-provided insurance than thirty years ago and the price of health care for those who do receive it is ever increasing. Second, while many employees are without health insurance, the compensation for chief executive officers and other executive officers has increased dramatically. Third, consider the well-publicized examples of corporate decisions to engage in fraudulent and unethical business practices.

These problems will not be solved by glib references to market ideology that claims markets alone adequately regulate corporate behavior. Nor will these problems be …

Social Choice, Crypto-Initiatives And Policy Making By Direct Democracy, Thad Kousser, M D. Mccubbins

University of San Diego Law and Economics Research Paper Series

The initiative process was created originally to enable citizens to enact public policy directly and in so doing to overturn the dominion of interest groups and of state and local party machines. In recent years, initiatives have been thought to serve as a check on legislative authority and to provide the people with a means to pressure the legislature into adopting more public regarding policies. Indeed, the general consensus emerging from the most recent academic research is that, at their worst, initiatives are benign, while at their best, they serve to further the interests of electoral majorities.

A few scholars, …

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Daniel B. Rodriguez, Mathew D. Mccubbins

University of San Diego Law and Economics Research Paper Series

In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon -- essentially, that the appropriations process is unrepresentative and insufficiently deliberative -- and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects …

The Web Of Law, Thomas A. Smith

University of San Diego Law and Economics Research Paper Series

Scientists and mathematicians in recent years have become intensely interested in the structure of networks. Networks turn out to be crucial to understanding everything from physics and biology, to economics and sociology. This article proposes that the science of networks has important contributions to make to the study of law as well. Legal scholars have yet to study, or even recognize as such, one of the largest, most accessible, and best documented human-created networks in existence. This is the centuries-old network of case law and other legal authorities into which lawyers, judges, and legal scholars routinely delve in order to …

Descriptive Trademarks And The First Amendment, Lisa P. Ramsey

University of San Diego Law and Economics Research Paper Series

The protection of exclusive rights in descriptive trademarks is an unconstitutional restriction of speech under the First Amendment. Trademark laws that prohibit a competitor from using trademarked descriptive words to sell a product fail to satisfy the Central Hudson test for evaluating the constitutionality of commercial speech regulations. The use of a descriptive term to accurately describe a product is not misleading expression regardless of whether another business claims trademark rights in that term. Although the government has a substantial interest in protecting the ability of consumers to identify and distinguish among the products of a business and its competitors, …

Procedural Justice, Lawrence B. Solum

University of San Diego Law and Economics Research Paper Series

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, …