Law Commons^™

The Lives Of John Marshall, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Comments On The Symposium: Expanding Research Opportunities On The Federal Criminal Justice System, Daniel C. Richman

Faculty Scholarship

A full understanding of how the federal enforcement bureaucracy will elude us without a rich understanding of what makes prosecutors (or agents) tick. However, I suspect that the best way to reach that goal is not to start with this ultimate question. After all, to look closer to home, what do professors “maximize” when they grade papers? Progress is much more likely to be made if we follow Jim Eisenstein and focus on, first, identifying the most salient features of the bureaucratic environment, and, second, getting a handle on their relative influences.

Facing The Urban Future After September 11, 2001, Richard Briffault

Faculty Scholarship

In this essay I would like to address briefly four issues of importance to local governments raised by the September 11 attack and its aftermath. These issues are the role of local governments in addressing questions of public safety and preparedness; the relations among local governments within a region in responding to terrorism; the role of the federal government in the local response to terrorism; and the implications of September 11 for the structures and functions of local government. These issues are interconnected. Certainly, an effective local response to the public safety challenge posed by terrorism will require more coordinated …

Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg

Faculty Scholarship

In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act. I then consider the new technology cases from piano rolls through videotaperecorders, as well as Congress' responses to new technological means of exploitation. I make two submissions. First, I conclude that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement, even though the legal and economic analysis that support those determinations often …

Labor And Employment Law At The Millennium: A Historical Review And Critical Assessment, Stephen F. Befort

Articles

This Article uses a historical perspective as a basis to analyze the current state of labor and employment law in the United States. The Article first chronicles the decline in collective governance and the corresponding rise in the governmental regulation of the individual employment relation during the past 50 years, and attempts to ascertain the socio-economic forces contributing to this evolution. The Article then critiques the current state of workplace legal rules and finds a number of deficiencies in terms of both efficiency and equity. The Article pays particular attention to the impact of globalization and the resulting exacerbation in …

Keeping Secrets, Dale Carpenter

Articles

The right to privacy is the power to keep secrets. It is a power conferred in one form or another by the Constitution, by statute, and by tort law. It hinders the ability of the government and other citizens to know things about us that we -- often for very good reasons - would rather not have them know. It is a power that acts as a counterweight to the power of the state and of other citizens to monitor-often for very good reasons-what we do, what we read, what we say, and with whom we associate

Using Evaluations To Break Down The Male Corporate Hierarchy: A Full Circle Approach, Edward Adams

Articles

This Article explores full circle evaluations in detail, arguing that corporate boards should implement such systems. Part I details full circle evaluations and explains the benefits associated with the use of such systems. Part II describes the potential legal duty to implement full circle evaluation systems. Part III argues that full circle evaluations consider the input of all persons in the corporation, thereby increasing the extent to which decisions concerning promotions are based on objective factors of merit and facilitating the advancement of women in the workplace. Part IV concludes that in light of all of the aforementioned considerations, the …

Violence, Video Games, And A Voice Of Reason: Judge Posner To The Defense Of Kids' Culture And The First Amendment, Clay Calvert

San Diego Law Review

"We are in the world of kids' popular culture. But it is not lightly to be suppressed."' So wrote Judge Richard A. Posner on behalf of a unanimous three judge panel for the Seventh Circuit Court of Appeals in March 2001 in striking down, on First Amendment grounds, an Indianapolis ordinance that blocked minors' access to video games depicting violence. Judge Posner's erudite opinion could not have come at a more important time-a time when the entertainment industries in the United States seemingly are under government siege and when the media blame game is peaking. The judge's cogent reasoning and …

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules, Timothy D. Chandler, Rafael Gely, Jack Howard, Robin Cheramie

San Diego Law Review

Over the last three decades, there have been significant increases in labor force participation by women. Initially, this increase was fueled by the entry of single, childless women into the labor market. Married women primarily dedicated their efforts to home care concerns. However, in recent years, a new trend has emerged as "the levels of market work undertaken by married women have increased relative to those of unmarried women."

Responsibility In Capital Sentencing, Steven Semeraro

San Diego Law Review

Although modem doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. Two concrete ways to improve it would be to (1) explain the sentencer' s role in the narrative voice, a way of speaking that, at least in American society, appears to be associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences by state appellate courts, bringing the responsibility of state appellate judges in capital cases in line with the responsibility they bear in constitutional cases dealing with analogous mixed questions of fact and law under the First, …

Masthead

San Diego Law Review

No abstract provided.

Ethnography And The Idealized Accounts Of Science In Law, David S. Caudill

San Diego Law Review

n Part I, I confirm the idealizations of science in law and their implications for legal scholarship and practice. In Part II, I describe the ethnographic method used by science studies scholars, with reference to my own ethnographic analysis of interviews with three neuroscientists. I conclude Part II by identifying various social aspects of science that comprise a complex picture of scientific activity. In Part ill, I discuss the implications of ethnomethodology for trial practice, including deposition analysis, Daubert-type hearings, cross-examination techniques, and drafting jury instructions. Part IV addresses anticipated criticisms of my arguments.

Feminist Legal Writing, Kathryn M. Stanchi

San Diego Law Review

Because feminist legal advocates must use legal writing to persuade

their audience and push for change in the law, they must confront the dilemma of whether to follow legal writing conventions and risk altering or losing their feminist message or whether to break from convention and risk losing the legal audience. Feminist legal scholarship, in many different ways, has made great progress in dealing with this dilemma. The focus of this Article, however, is on several pieces of feminist legal scholarship that have confronted the dilemma by pushing the bounds of conventional legal language and legal writing. These pieces, by …

Why Repeal Of The Death Tax Means The Second Demise Of Substantive Due Process, Paul E. Mcgreal

San Diego Law Review

Death and taxes. For the first two centuries of American democracy, the former has been the province of Providence, the latter the concern of Congress. Congress has focused on the Internal Revenue Code, leaving death to the aging process, human folly, religion, and Darwinian forces. In a stunning power grab, Congress recently upset this order, asserting control over both domains. No longer satisfied to allow life to run its

course, Congress has sought to hasten accrual of the Death Tax. simply, Congress has sanctioned the killing of rich Baby Boomers.

To Breathe, Or Not To Breathe: Passive Alcohol Sensors And The Fourth Amendment

San Diego Law Review

No abstract provided.

Putting The Cart Before The Horse: The Need To Re-Examine Damage Caps In California's Elder Abuse Act*

San Diego Law Review

This Comment addresses what has been and continues to be a very controversial area of the law-damage caps imposed on plaintiffs who bring medical malpractice claims against health care providers in California. Since 1975, the state has restricted these actions as a means of holding down liability insurance premiums and reducing litigation through a package of statutes called the Medical Injury Compensation Reform Act (MICRA). In 1991, the legislature extended these limitations to claims brought under the state's Elder Abuse Act while at the same time providing for enhanced remedies in such actions to encourage litigation. Today, upon showing clear …

Introduction

San Diego Law Review

No abstract provided.

Is Moral Theory Perplexed By New Genetic Technology?, Richard J. Arneson

San Diego Law Review

From Chance to Choice: Genetics and Justice

intelligently addresses difficult issues at the intersection of medical ethics and the theory of justice. The authors Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler repeatedly emphasized their opinion that advances in genetic technology force upon us entirely new ethical questions that previous moral theories lack the resources to resolve.

The claim that

new scientific discoveries render previous moral theories obsolete should be regarded with suspicion. Suspicion should be further aroused when readers note another feature of the authors’ theorizing that neatly fits the claim that we stand at the dawn …

Reasonable Expectations And The Erosion Of Privacy, Shaun B. Spencer

San Diego Law Review

This Article examines how the prevailing legal conception of privacy facilitates the erosion of privacy. The law generally measures privacy by reference to society’s reasonable expectation of privacy. If we think of the universe of legally private matters as a sphere, the sphere will contract or (at least in theory) expand in accordance with changing social expectations. This expectation-driven conception of privacy in effect establishes a privacy marketplace, analogous in both a literal and metaphorical sense to a marketplace of ideas. In this marketplace, societal expectations of privacy fluctuate in response to changing social practices. For this reason, privacy is …

The Purloined Personality: Consumer Profiling In Financial Services

San Diego Law Review

Although almost every sector of the U.S. economy practices consumer profiling,perhaps the most substantive challenge to consumer privacy is found in the activities surrounding the use and disclosure of consumer transaction data by the financial services industry. For that reason, this Comment focuses exclusively on consumer profiling in the context of the financial services sector, defined as banks, credit card issuers, brokerages, and insurance companies.

Masthead

San Diego Law Review

No abstract provided.

Unbuckling The “Chemical Straitjacket”: The Legal Significance Of Recent Advances In The Pharmacological Treatment Of Psychosis, Douglas Mossman

San Diego Law Review

The

pharmacotherapeutic properties of antipsychotic medications— their actions, therapeutic uses, benefits, adverse effects, contraindications, and risks—are quintessentially medical topics, even when the situations and contexts in which doctors prescribe or recommend their use raise legal questions. Frequently, however, the legal database (that is, published opinions, legislation, regulation, and law review articles) is the principal or sole information source cited and consulted by lawyers, judges, and scholars who write about these drugs and make decisions concerning the persons that may have to take them. What often results is the perpetuation of mistaken, outdated, distorted, biased, contradictory,

or just plain foolish ideas …

Balancing The Anonymity Of Threatened Witnesses Versus A Defendant’S Right Of Confrontation: The Waiver Doctrine After Alvarado, Joan Comparet-Cassani

San Diego Law Review

As this Article will show, the Alvarado holding is very narrow, requiring disclosure only when a witness is crucial to the prosecution and when the witness’s credibility is at issue.

The interesting issue left unresolved by Alvarado is whether the identity of a crucial witness whose credibility is not at issue must be disclosed to the defense at trial when the witness has been threatened and attacked by the defendant or at the defendant’s behest. Or, whether because of that intimidation, the defendant has waived his right of confrontation as to the witness’s identity. This question is ripe for exploration …

Liberty Not Fully Evolved?: The Case Of Rodney Levake And The Right Of Public School Teachers To Criticize Darwinism, Francis J. Beckwith

San Diego Law Review

In 2001, the Minnesota Court of Appeals reviewed the case of Rodney LeVake, a public school teacher who sought to enhance his school

district’s required science curriculum by suggesting to students alternative viewpoints inconsistent with that curriculum. This case, LeVake v. Independent School District, should be of great interest to legal theorists. Its holding, and the reasoning on which it is based, may serve as a Socratic provocation regarding the extent to which public school teachers have constitutional academic freedom (apart from statutory requirements or permission) to voluntarily include criticisms of and alternatives to evolutionary theory.

Into Contract’S Undiscovered Country: A Defense Of Browse-Wrap Licenses

San Diego Law Review

The Internet is important not only because of its popularity, but also because of its power for innovation. The Internet has caused an explosion of new services and innovative types of commerce. The Internet has also changed the contours of the marketplace, creating a connected economy in which anyone with a computer and a phone line can do business directly with a maker of goods anywhere in the world and at any time. The Internet has even changed consumers themselves, empowering them with unlimited information about products. The Internet has also changed the relationship that consumers have with products created …