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Articles 1 - 30 of 133
Full-Text Articles in Law
Conversations In Legal Education: Carl A. Auerbach, December 16, 2004, Carl A. Auerbach
Conversations In Legal Education: Carl A. Auerbach, December 16, 2004, Carl A. Auerbach
Conversations in Legal Education
No abstract provided.
Conversations In Legal Education: Carl A. Auerbach, December 14, 2004, Carl A. Auerbach
Conversations In Legal Education: Carl A. Auerbach, December 14, 2004, Carl A. Auerbach
Conversations in Legal Education
No abstract provided.
Conversations In Legal Education: Carl A. Auerbach, November 12, 2004, Carl A. Auerbach
Conversations In Legal Education: Carl A. Auerbach, November 12, 2004, Carl A. Auerbach
Conversations in Legal Education
No abstract provided.
Conversations In Legal Education: Carl A. Auerbach, November 9, 2004, Carl A. Auerbach
Conversations In Legal Education: Carl A. Auerbach, November 9, 2004, Carl A. Auerbach
Conversations in Legal Education
No abstract provided.
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
University of San Diego Public Law and Legal Theory Research Paper Series
This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …
Motions 2004 Volume 40 Number 3, University Of San Diego School Of Law Student Bar Association
Motions 2004 Volume 40 Number 3, University Of San Diego School Of Law Student Bar Association
Newspaper, Motions (1987-2019)
No abstract provided.
Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar
Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar
San Diego Law Review
Looking back on forty-five years of law review writing, Professor Kamisar concludes that, to use George Orwell's words, he has been moved to write by "a sense of injustice" and the need to "expose" "some lie," e.g., the lie that the trial judge or the prosecuting attorney can be counted on to protect the rights of unrepresented defendants. He maintains further that law professors generally should feel an obligation to write because they can think through and research exhaustively any and every problem they meet along the way without worrying about billable hours and they can do so "under working …
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
San Diego Law Review
This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of activist courts and judicial legislation have colored the existing scholarship and portrayed remedial …
Reconceptualizing Aggravated Damages: Recognizing The Dignitary Interest And Referential Loss, Jeffry Berryman
Reconceptualizing Aggravated Damages: Recognizing The Dignitary Interest And Referential Loss, Jeffry Berryman
San Diego Law Review
In this Article, the author argues for the explicit recognition of the "dignitary interest" as a distinct head of damages. In Part I, he analyzes recent decisions of the Supreme Court of Canada that have commented on the availability of aggravated damages. Part II identifies how the protection of dignity lies at the root of awards for aggravated damages. Part III conceptualizes what is encompassed within the "dignitary interest." Part IV contrasts a purely remedial response with those who advocate a new tort action to protect loss of dignity. Finally, the prescriptive power of explicit recognition of the dignitary interest …
The Law Of Remedies In The Second Half Of The Twentieth Century: An Australian Perspective, Gary Davis, Michael Tilbury
The Law Of Remedies In The Second Half Of The Twentieth Century: An Australian Perspective, Gary Davis, Michael Tilbury
San Diego Law Review
This Article examines the development of the law of Remedies in Australia during the second half of the twentieth century. The authors look at the general triumph of the compensation principle, the resurgence of equitable compensation, the statutory overlay of the common law, and conclude with issues for the twenty-first century.
Introduction: Third Remedies Discussion Forum, Russel L. Weaver
Introduction: Third Remedies Discussion Forum, Russel L. Weaver
San Diego Law Review
Russel L. Weaver provides an introduction to the symposium on the Remedies Discussion Forum. He explains that the papers being submitted in this symposium are "discussion papers" that were submitted by the participants prior to the meeting and formed the basis for the discussions. He goes on to provide a brief introduction for each paper.
Do Punitive Damages Compensate Society?, Michael B. Kelly
Do Punitive Damages Compensate Society?, Michael B. Kelly
San Diego Law Review
This Article focuses on the concept that punitive damages can be justified as a substitute for compensatory damages for harms caused by the defendant to persons other than the plaintiff. The author concludes that punitive damages are a poor device for redressing harms caused to persons not a party to the action. Once punitive damages seek to address concerns beyond the plaintiff and the defendant, they raise a series of problems that defy rationalization. This article urges that we not take punitive damages as so great a good that we run roughshod over dues process in our zeal to preserve …
Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy
Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy
San Diego Law Review
This Article focuses on the third guidepost announced in BMW v. Gore for reviewing whether the amount of punitive damages award is so excessive as to violate due process, specifically, comparing punitive damages to criminal sanctions. Part I of the article examine the Supreme Court's language in several cases about the relevance of criminal sanctions to the question whether a punitive award is constitutionally excessive. It criticizes the Campbell effort to distinguish between civil and criminal penalties under the third guidepost. Part II suggests that the third guidepost, in theory, wrongly constrains courts from imposing sanctions above those created by …
Reforming Reprehensibility: The Continued Viability Of Multiple Punitive Damages After State Farm V. Campbell, Rachel M. Janutis
Reforming Reprehensibility: The Continued Viability Of Multiple Punitive Damages After State Farm V. Campbell, Rachel M. Janutis
San Diego Law Review
In this Article, the author discusses how the Supreme Court's recent decision in State Farm v. Campbell reformed the reprehensibility analysis and how this reformation may have the perhaps unintended consequence of eliminating the practice of awarding total harm damages. In particular, in an effort to limit the size of individual punitive damage awards, Campbell limits the use of evidence of conduct directed at parties not before the court.
The Republican Model And Punitive Damages, David F. Partlett
The Republican Model And Punitive Damages, David F. Partlett
San Diego Law Review
Fueled by complaints of outlandish punitive damage awards and a United States Supreme Court intent on bringing constitutional order to this corner of torts damages, a considerable literation has emerged. Commentators have examined the bases for the award of punitive damages and have applied empirical analysis to probe the legitimacy of popular criticism and the extent to which punitive damages fulfill the goals assigned to them. In this essay, I propose that punitive damages should be conceptualized in light of a republican theory of tort law with the jury as its central institution. This is ironic, since influential commentators and …
The Rise And Decline Of Structural Remedies, Russell L. Weaver
The Rise And Decline Of Structural Remedies, Russell L. Weaver
San Diego Law Review
One of the most significant remedial developments during the twentieth century was the rise and (partial) decline of the structural injunction in which courts, usually federal courts, restructure or reshape legislative or administrative agencies such as schools or prisons. Structural remedies appear to be inconsistent with the judicial function conceptually. Despite this concern, federal courts have entered structural relief in an extraordinary array of cases that have dramatically reshaped society. This Article examines the structural remedy and offers some reflections on its appropriate use.
Brown Ii's "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid-Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman
San Diego Law Review
In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
Why We Write: Reflections On Legal Scholarship, Emily Sherwin
San Diego Law Review
In the Articles that follow, a group of extraordinarily successful legal scholars set out their thoughts on the enterprise of legal scholarship. Their conceptions of that enterprise vary widely. The range of their views, and of course, the very idea of a set of articles on why we write articles, suggests the uncertainty that affects the field. At the same time, most of the authors are reasonably optimistic about the value of scholarship about the law.
Legal Scholarship As Resistance To "Science", Steven D. Smith
Legal Scholarship As Resistance To "Science", Steven D. Smith
San Diego Law Review
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.
Legal Scholarship: A Corporate Scholar's Perspective, Jonathan R. Macey
Legal Scholarship: A Corporate Scholar's Perspective, Jonathan R. Macey
San Diego Law Review
Using Professor Jonathan Macey's own field, corporate law, as its focal point, this Article argues that alternative approaches to legal scholarship, whatever their other merits, do not help connect the law school to other parts of the universities in which they are situated, and in face actually alienate the law school from their more intellectually rigorous campus counterparts.
Writing Highs And Lows, Kimberly A. Yuracko
Writing Highs And Lows, Kimberly A. Yuracko
San Diego Law Review
Professor Kimberly Yuracko explores the high and low reasons why academics write. In her opinion, the high reasons seem more noble and pure than the low reasons.
Why Do Emprirical Legal Scholarship?, Theodore Eisenberg
Why Do Emprirical Legal Scholarship?, Theodore Eisenberg
San Diego Law Review
People conduct legal scholarship for many different reasons. This Article focuses on the demand for and reaction to scholarship that helps inform litigants, policymakers, and society as a whole about how the legal system works. The author argues that the need for legally sophisticated empirical analysts is clear.
False Endorsement Or First Amendment?: An Analysis Of Celebrity Trademark Rights And Artistic Expression, Joshua Beser
False Endorsement Or First Amendment?: An Analysis Of Celebrity Trademark Rights And Artistic Expression, Joshua Beser
San Diego Law Review
In Part I, this Comment will address both artistic and entertainment industry issues relating to using celebrity names and images in creative works. Part II will discuss the relationship between state right of publicity and privacy claims, and federal trademark law. Part III will discuss the Lanham Act's history and purpose, including its traditional applications and recent amendments. Part IV will address the First Amendment issues raised when creative works use celebrities' names and images. Part V will address the three tests courts use to balance section 43(a) Lanham Act claims and First Amendment rights. Part VI will advocate the …
California's Unfair Competition Law - Making Sure The Avenger Is Not Guilty Of The Greater Game, Mathieu Blackston
California's Unfair Competition Law - Making Sure The Avenger Is Not Guilty Of The Greater Game, Mathieu Blackston
San Diego Law Review
This Comment will discuss the problems underlying California's Unfair Competition Law that eventually led to the adoption of Proposition 64. It will also assess the Proposition's method of addressing those problems, which arose due to the UCL's broad standing provision and lack of res judicata effect. Additionally, this Comment will look at outstanding issues not remedied by the recent amendments to 17200, as well as review recent judicial decisions and evaluate their success at clarifying a law that one California Supreme Court Justice has dubbed a "growth industry."
Raich V. Ashcroft: Medical Marijuana And The Revival Of Federalism, Samantha Everett
Raich V. Ashcroft: Medical Marijuana And The Revival Of Federalism, Samantha Everett
San Diego Law Review
In Raich v. Ashcroft, the Ninth Circuit ruled that the CSA was an unconstitutional exercise of congressional commerce power when applied to citizens who use marijuana that has not traveled interstate and was never intended for interstate or foreign commerce. This Casenote argues that Raich was correctly decided and should be upheld by the Supreme Court on appeal. In addition, the judiciary should continue to narrowly interpret the commerce power in order to further the fundamental purpose of our dual system of government: protection of individual rights. More specifically, courts should apply the reasoning of Raich and narrowly define the …
The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber
The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber
San Diego International Law Journal
In the broadest historical perspective, the Convention laid the groundwork for the modern-day norm of multi-lateralist style and structure for sustainable management of ocean resources. It is fitting, then, that a conference bringing together experts on ocean law and policy from many countries would have gathered in 2003 at the University of California, Berkeley to consider the current-day initiatives in multilateralism and, at the same time, to recall their origins and precursors starting with the International North Pacific Fisheries Convention.
Foreword, Amit S. Parekh, Harry N. Scheiber
Foreword, Amit S. Parekh, Harry N. Scheiber
San Diego International Law Journal
The Journal, in partnership with the Law of the Sea Institute at the University of California, Berkeley, is therefore proud to present a symposium on "Multilateralism in International Ocean Resources Law." The authors represented in this symposium delivered papers last year at a conference organized by the Institute at the Boalt Hall School of Law, UC-Berkeley; and those papers have been extensively revised for publication in this issue.
Recollections Of The 1952 International North Pacific Fisheries Convention: The Decline Of The Principle Of Abstention, Shigeru Oda
San Diego International Law Journal
Having recently completed twenty-seven years on the bench of the International Court of Justice in The Hague, I have just returned to Sendai, Japan, my home town. Please permit me therefore to offer some personal recollections of the time fifty years ago when, as a graduate law student from occupied Japan traveling on a passport issued by General MacArthur, Supreme Commander of the Allied Powers in Japan, I began preparation of my doctoral dissertation at Yale Law School.
The Pacific Ocean And U.S.-Japan Relations: A Way Of Looking Back At The 20th Century, Akio Watanabe
The Pacific Ocean And U.S.-Japan Relations: A Way Of Looking Back At The 20th Century, Akio Watanabe
San Diego International Law Journal
Speaking of a "Pacific Age" is now commonplace. About a hundred years ago, however, it was almost a flight of fancy. In 1890, Manjiro Inagaki, a Cambridge-educated Japanese diplomat, wrote: "Without doubt the Pacific will in the coming century be the platform of commercial and political enterprise. This truth, however, escapes the eyes of ninety-nine out of a hundred, just as did the importance of Eastern Europe in 1790 and of Central Asia in 1857." Inagaki's belief was based on the seemingly inevitable clash of interests between England and Russia in those years. The rivalry for spheres of influence between …