Law Commons^™

Foreword: Is Reliance Still Dead?, Randy E. Barnett

San Diego Law Review

In 1996, I published an article entitled The Death of Reliance; based on a talk I gave at the annual meeting of the Association of American Law Schools on recent trends in legal scholarship. In it I claimed there then existed a "new consensus" that a "reliance theory" did not explain the doctrine of promissory estoppel.What exactly a ''reliance theory" is has never been made clear by those who seemed to advocate it-apart from their insistence that, just as tort law rectified the harm caused by physical misconduct, the purpose of contract law was to rectify detrimental reliance caused by …

Remedies For Imperfect Transactions In Contracts And Torts, David W. Barnes

San Diego Law Review

The papers by Professors DeLong, Wonnell, and Kelly in this Symposium address different types of imperfect transactions. Promises that are the subject of section 90 of the Restatement (Second) of Contracts are imperfect in the sense that they lack consideration or are disclaimed in subsequent, formalized, written contracts.' Section 90 authorizes courts to find remedies for reasonable but fruitless expenditures induced by parties who make promises on which they should reasonably expect others to rely.2 Professor DeLong decries courts' formalist strategies for enforcing disclaimers that eliminate these promisors' potential liability for intentionally imperfect transactions.' Taking Professor DeLong's analysis of imperfect …

The Pain Relief Promotion Act Of 1999 And Physician-Assisted Suicide: A Call For Congressional Self-Restraint

San Diego Law Review

Physician-assisted suicide is gaining prominence in our social consciousness as patients and physicians, legislatures and courts wrestle with how best to resolve the profound differences of opinion regarding its practice. This Comment addresses the legal and structural arguments

surrounding whether the decision to permit or prohibit physician- assisted suicide should be made by Congress or by the states.

The Phantom Reliance Interest In Tort Damages, Michael B. Kelly

San Diego Law Review

The reliance interest has fascinated me for some time.' As a measure of damages for breach of contract, it seems theoretically unjustified and flawed in its implementation. In theory, it requires compensation for lost opportunities? In practice, such compensation is rarely provided'

unless one counts the expectation interest as a proxy for opportunities lost in reliance on a promise. In theory, it justifies recoveries that may exceed expectation. Yet, even its progenitors refused to endorse that implication. Why, then, does the reliance interest have continuing appeal

Richardson V. Reno: What Is The Proper Application Of The Illegal Immigration Reform And Immigrant Responsibility Act To Criminal Aliens?

San Diego Law Review

This Casenote questions the Richardson court's holding. Specifically, this Casenote argues that precluding all judicial review, including habeas corpus review, for criminal aliens held removable by the INS violates the Suspension Clause of the United States Constitution. Further, to interpret IIRIRA as eliminating the availability of habeas corpus relief in these circumstances calls into question the constitutionality of the statute due to constitutional limits on Congress's power to control the jurisdiction of Article III courts.

Taxing Income From Mailing List And Affinity Card Arrangements: A Proposal, Kevin M. Yamamoto

San Diego Law Review

The courts' and the Internal Revenue Code ("Code")2 presently treat

income received by a tax-exempt organization for affinity card programs' and mailing list rentals4 similarly; neither type of income is subject to taxation.5 This Article asserts that equal treatment should not be the case. Because donors have not consented to sell their personal information, the exception for royalty income from the unrelated business income tax ("UBIT") should not permit the tax-free rental of a nonprofit organization's mailing list. Affinity card income, on the other hand, should continue to be nontaxable since any income received from these programs comes from the …

The 2000 Federal Civil Rules Revisions, Carl Tobias

San Diego Law Review

The first section of this Essay surveys the historical background of the 2000 group of amendments to the Federal Rules of Civil Procedure. The second portion of the Essay selectively evaluates the most contested and important constituents of the package of revisions and analyzes the effects that federal district court implementation of the 2000 amendments alone and together will apparently have. Ascertaining that several modifications are somewhat controversial and that, individually or in combination, they could have relatively significant impacts, the third segment affords suggestions for future action that members of the legislative and judicial branches, lawyers and parties should …

United States V. Locke, 529 U.S. 89 (2000)

San Diego Law Review

The Ports and Waterways Safety Act (PWSA) authorizes, but does not require, the United States Coast Guard to enact prophylactic measures for regulating ocean vessel traffic, protecting waterway navigation, and protecting the marine environment. I The United States Supreme Court recently decided that individual states do not have the authority to enact oil tanker laws and regulations that are more restrictive than the federal

PWSA. Citing the Supremacy Clause, z the Supreme Court, in United States v. Locke, 3 held that a federal determination that a vessel is sufficiently safe to navigate United States waters trumps contrary or inconsistent state …

Hate In Cyberspace: Regulating Hate Speech On The Internet, Alexander Tsesis

San Diego Law Review

The speed at which information can be spread throughout the United States and other countries has been greatly enhanced by the Internet. This computer-driven, technological medium consists of various modes of transmission, including discussion groups, interactive pages, and mail services. A wide variety of pictorial, auditory, and written information is available on the Internet. Persons with disparate goals can access and affect large audiences through it. Both those seeking social improvement and those promoting racist violence can now increase the magnitude, diversity, and location of their audiences. Persons advancing

democratic ideals and those inclined to exclusionary elitism can use e- …

Privatizing Social Security, Jerry W. Markham

San Diego Law Review

This Article will address the debate and discuss regulatory concerns that would arise with the creation of private social security accounts. As will be shown, the present system fails to provide real social security, and deprives those most in need of a retirement program of an opportunity to increase their wealth or to have a comfortable retirement. Shifting to a private system would be expensive, but could be accomplished through recognition of the benefits of private investments and through a program of tax credits and deductions. Existing regulatory requirements protect private social security account holders from fraud, as well as …

Tobacco Tort Litigation In California: A Better Understanding Of Civil Code Section 1714.45, Stephen D. Sugarman

San Diego Law Review

Before 1963, lawsuits in California by victims of product injuries were either handled under principles of negligence or they were cast as contract claims that drew on “implied warranty” principles.8 For example, if someone bought a loaf of bread from a local bakery, took a bite out of the loaf, and it turned out that a sharp pin hidden in the bread injured the person, the victim could sue the bakery (1) in tort, claiming that the bakery negligently allowed the pin to get into the bread, or (2) in contract, claiming that in providing this sort of bread the …

The Supreme Court, The Florida Vote, And Equal Protection, Larry Alexander

San Diego Law Review

The Supreme Court majority in Bush v. Gore1 has taken a lot of flak for its ruling that the Florida count of undervotes violated the Equal Protection Clause of the Fourteenth Amendment. Commentators, and not only those on the left, have labeled the Court’s reasoning as without basis in precedent, weak in its logic, and breathtakingly sweeping in its implications.2 For those inclined to suspect the justices of naked partisanship, the equal protection argument did nothing to allay those suspicions.

It is argued in this Essay, however, that the case for an equal protection violation is supported both by precedent …

“God Told Me To Kill”: Religion Or Delusion?, Grant M. Morris, Ansar Haroun

San Diego Law Review

This Article explores how, in assessing the motivation of those who kill because they believe they were directed by God to do so, society distinguishes religious-based decisions from delusional decisions that result from mental disorder. Part II discusses how religion is defined in our society, and Part III considers the extent to which religious conduct, as opposed to religious belief, is protected from governmental intrusion.

Sex Changes And “Opposite-Sex” Marriage: Applying The Full Faith And Credit Clause To Compel Interstate Recognition Of Transgendered Persons’ Amended Legal Sex For Marital Purposes

San Diego Law Review

This Comment argues that, in most cases, states are constitutionally bound to give full faith and credit to laws and judgments rendered in

sister states, including those that result in changes of the sex designated on birth certificates. The sex designated on the birth certificate controls gender identity for all legal purposes of the individual named therein. Therefore, unless a forum state demonstrates that allowing transsexuals and intersexuals to marry in their legal gender is contrary to an important state interest, that state must recognize “opposite-sex” marriages involving transsexuals and intersexuals.

Which Public, Whose Interest? The Fcc, The Public Interest, And Low-Power Radio

San Diego Law Review

Faced with legal challenges8 and, in 1998 alone, over 13,000 inquiries from people and groups interested in starting low-power stations, the government relented, and in January 2000, completed a process creating a new low-power FM (LPFM) service.9 In the space of two years, the FCC had gone from raiding and shutting down microradio stations to inviting applications for low-power broadcast licenses. Such a dramatic shift in policy could only come about through a reinterpretation of the public interest standard. Part III of this Comment continues by analyzing

the concept of the public interest that underlies the new LPFM service and …

Listening For A Change: The Courts And Oral Tradition, John Borrows

Osgoode Hall Law Journal

Aboriginal oral history is a valuable source of information about a people's past. It can constitute important evidence as proof of prior events, and/or it can shed light on meanings groups give to their past. Despite its value, however, oral tradition presents particular challenges of admissibility and interpretation because of its unique source and transmission. This article outlines and discuses these challenges and suggests various approaches to better understand the insights contained within aboriginal history.

Hiv/Aids And Human Rights In Russia: Compliance And The Rule Of Law, William F. Flanagan

Osgoode Hall Law Journal

This article examines Russia’s legal response to its ongoing HIV/AIDS epidemic. Russia’s international human rights obligations are reviewed and the article then critically assesses the extent to which Russia’s current HIV/AIDS law and practice are consistent with those obligations. The paper demonstrates that most aspects of Russia’s HIV/AIDS laws are consistent with Russia’s international obligations. However, the paper also documents key parts of HIV/AIDS practice in Russia that are seriously inconsistent with both Russian HIV/AIDS law and Russia’s international human rights obligations. This inconsistency between HIV-related de jure norms and de facto practice raises the question of compliance with the …

Secret Code: The Need For Enhanced Privacy Protections In The United States And Canada To Prevent Employment Discrimination Based On Genetic And Health Information, Patrik S. Florencio, Erik D. Ramanathan

Osgoode Hall Law Journal

The collection of genetic and health information by employers for reasons that are unrelated to the health and safety of workers is an undue infringement of the right to privacy, and consequently should be firmly prohibited by statute. Comprehensive genetic and health information privacy requires the protection of at least three critical elements of the right to privacy--namely choice, secrecy, and confidentiality. While choice and secrecy protect the individual's right to privacy at the collection stage, confidentiality safeguards this right at the point of disclosure. Laws that focus on the inappropriate use of genetic and health information without addressing the …

Securing Accountability Through Commissions Of Inquiry: A Role For The Law Commission Of Canada, Robert Centa, Patrick Macklem

Osgoode Hall Law Journal

Focusing on the Government of Ontario's unwillingness to call a public inquiry into the death of Dudley George, an Aboriginal protester, and the Government of Canada's willingness to interfere with an inquiry into the deployment of Canadian forces to Somalia, this article argues that governments appear increasingly reluctant to support a commission of inquiry into a public crisis even where it can serve as a catalyst for addressing larger and more pressing concerns of institutional and policy reform. It first addresses "start-up problems" associated with the fact that the decision to appoint a commission of inquiry lies within the sole …

Punishing The Causer As The Principal: Mens Rea And The Interstate Transportation Element Of The National Stolen Property Act

San Diego Law Review

Transporting goods worth over five thousand dollars, which are known to be stolen, in interstate commerce is a violation of the Federal National Stolen Property Act (NSPA).' The congressional intent behind the NSPA is to aid the states in punishing those who commit theft, fraud, or counterfeiting in violation of state law, but elude punishment by utilizing the channels of interstate commerce.2 Congress included an interstate transportation element in this statute, which is otherwise parallel to a typical state stolen property statute, merely to supply a constitutional basis for the exertion of federal power.' Thus, Congress enacted the NSPA as …

New Modes Of Assessment, Greg Sergienko

San Diego Law Review

are extremely burdensome to grade. The purpose of this Article is to call attention to a variety of alternatives to this traditional format that are more accurate and less burdensome than traditional essay exams.2 Increasing accuracy makes it

possible to determine whether the instruction has been effective, allowing the instructor to address areas of weakness before the course ends and to improve future classes. Decreasing the burden of assessment of student learning allows for faster feedback, which is more effective.' Faster assessment also makes possible frequent assessment, and frequent assessment provides students with the information they need to improve, promoting …

The Wrong Line Between Freedom And Restraint: The Unreality, Obscurity, And Hcivility Of The Fourth Amendment Consensual Encounter Doctrine, Daniel J. Steinbock

San Diego Law Review

restraint is clearly one of the most important, and one the law should be most anxious to get right. On the one side lies freedom to move around physically-the essence of what most people mean by "liberty." While not explicitly defined in the Constitution, this liberty is protected by several of its provisions: the due process clauses of the Fifth and Fourteenth Amendments,' the right to habeas corpus, the Thirteenth Amendment's ban on slavery, and the Fourth Amendment's protection against unreasonable seizures. Together they ensure against interference with personal freedom of movement in the form of bondage, incarceration, civil confinement, …

Teaching Law By Design: How Learning Theory And Instructional Design Can Inform And Reform Law Teaching, Michael Hunter Schwartz

San Diego Law Review

This Article examines the law school Vicarious Learning/Self Teaching Model in light of learning theory and instructional design. Further, it identifies both the good intuitions' and the many deficiencies

in how law professors develop and present instruction. More importantly, this Article offers a dramatically different approach to law school instruction, an approach more likely than current law teaching methodologies to produce effective, efficient, and appealing law school instruction.

Smart Growth And Other Infirmities Of Land Use Controls, Bernard H. Siegan

San Diego Law Review

The great lesson of our time is that the forces of production, conservation, and creativity exist principally in the marketplace and not in government. To be sure, private entrepreneurs act largely in their own self-interest, but probably no more so than government officials, and their endeavors in the economic area are much more beneficial to the public.

Rights Of Sexual Minorities In Ireland And Europe: Rhetoric Versus Reality, Bruce Carolan

Articles

Superficially, Irish and European Community law proclaim the rights of sexual minorities - particularly in web sites and printed information designed for public consumption. The reality is different. This article identifies a gap between the public pronouncements on the rights of sexual minorities under Irish and EC law. It employs a hypothetical fact situation to suggest that existing legal protections are anemic, and argues that the potential failure of affected groups to identify these deficiencies (due to contradictory claims in public information campaigns) could endanger efforts to effect progressive change.

The Not So Slippery Slope: The Eighth Circuit Determines That Employer-Paid Airfare Is Not Wages Subject To Withholding Taxes, Crystal Ovsak

North Dakota Law Review

No abstract provided.

Sustainable Production Agriculture In The Face Of Foreign Commodity Dumping: Achieving Effective Antidumping And Countervailing Duty Determinations, Steven Thuesen

North Dakota Law Review

No abstract provided.

The Future Of The Antiquities Act, James R. Rasband

Faculty Scholarship

No abstract provided.

The Rise Of Urban Archipelagoes In The American West: A New Reservation Policy?, James R. Rasband

Faculty Scholarship

No abstract provided.

An Evaluation Of The 2000 Census And Census Bureau Efforts To Measure The Gross And Net Rates Of Undercount, Eugene Ericksen

North Dakota Law Review

No abstract provided.