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Full-Text Articles in Law

Foreword, John M. Rogers May 2000

Foreword, John M. Rogers

San Diego International Law Journal

It is thus an exciting time of change for lawyers of all kinds, a time in which the University of San Diego School of Law has seized the day to inaugurate an outstanding journal on international and comparative law.... This inaugural volume treats issues at the core of how the international legal system is changing, and responding to change.


Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer Jan 2000

Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer

Nancy J. Knauer

In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest …


The Sanctity Of Association: The Corporation And Individualism In American Law, Liam Seamus O'Melinn Jan 2000

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, …


Addiction And Causation, Michael Corrado Jan 2000

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 …


What We Do When We Do What We Do And Why We Do It, Leo Katz Jan 2000

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: …


Theory Minimalism, Stanley Fish Jan 2000

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 …


Theory's A What Comes Natcherly, Larry Alexander Jan 2000

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 …


Deontology At The Threshold, Larry Alexander Jan 2000

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 Jan 2000

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, …


Dropping Slugs In The Celestial Jukebox: Congressional Enabling Of Digital Music Piracy Short-Changes Copyright Holders Jan 2000

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 …


Knowledge About Welfare: Legal Realism And The Separation Of Law And Economics, Herbert J. Hovenkamp Jan 2000

Knowledge About Welfare: Legal Realism And The Separation Of Law And Economics, Herbert J. Hovenkamp

All Faculty Scholarship

The welfare state could not function without judgments about how well off its citizens are. For example, governments devise progressive income taxes, which are designed to capture more wealth from the well off and less from the impecunious. These policies presume an ability to take a manageable amount of information about an individual's income or assets and make judgments about her welfare. In fact, people do this all the time, mostly without thinking about the methodological problems involved.

The superficial casualness of our daily observations about welfare belies the state of the economic science of welfare measurement. Economists have attempted …


A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang Jan 2000

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

All Faculty Scholarship

No abstract provided.


The Possibility Of A Fair Paretian, Howard F. Chang Jan 2000

The Possibility Of A Fair Paretian, Howard F. Chang

All Faculty Scholarship

No abstract provided.