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2004

University of San Diego

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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 Dec 2004

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 Dec 2004

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 Nov 2004

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 Nov 2004

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 Nov 2004

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 Nov 2004

Motions 2004 Volume 40 Number 3, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.


Recollections Of The 1952 International North Pacific Fisheries Convention: The Decline Of The Principle Of Abstention, Shigeru Oda Nov 2004

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.


Foreword, Amit S. Parekh, Harry N. Scheiber Nov 2004

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.


The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber Nov 2004

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.


Regionalism, Fisheries, And Environmental Challenges In The Pacific, Jon M. Van Dyke Nov 2004

Regionalism, Fisheries, And Environmental Challenges In The Pacific, Jon M. Van Dyke

San Diego International Law Journal

The Pacific, the world's largest ocean, contains many of the world's smallest countries. Most of these isolated islands were under colonial domination from the mid-19th century (or earlier) until about the 1970s, when they became independent. New Zealand (Aotearoa) and Australia participate in many Pacific regional organizations and activities. They are viewed as partners but play separate and different, while still important, roles because of their larger size and differences in culture and history.


Prometheus Bound Or Loose Cannon? Punitive Damages For Pure Breach Of Contract In Canada, John D. Mccamus Nov 2004

Prometheus Bound Or Loose Cannon? Punitive Damages For Pure Breach Of Contract In Canada, John D. Mccamus

San Diego Law Review

This Article examines the Supreme Court of Canada's punitive damage awards in pure breach of contract cases in recent years. The Supreme Court reaffirmed this development in its recent and leading decision in Whiten v. Pilot Insurance Co. The Court attempted to craft an approach to the awarding of punitive damages that would avoid the worst excesses of the American experience in Pilot Insurance. The author explores whether the Court succeeded in attaining that laudable objective, concluding that the decision disappoints by failing to supply a convincing reason for extending the scope of punitive damages in the contract context beyond …


Punitive Damages - A View From England, Andrew Tettenborn Nov 2004

Punitive Damages - A View From England, Andrew Tettenborn

San Diego Law Review

This Article explores the English approach to punitive damages. It begins with a brief history of punitive damages in England and a look at where punitive damages are going in the country. Then, the author discusses the criteria for an award and the possibility of punitive damages for break of contract. Other aspects of punitive damages in England explored in the Article include public defendants, liability, judge and jury and the size of punitive awards.


The Pacific Ocean And U.S.-Japan Relations: A Way Of Looking Back At The 20th Century, Akio Watanabe Nov 2004

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 …


Marine Ecosystem Management & (And) A Post-Sovereign Transboundary Governance, Bradley Karkkainen Nov 2004

Marine Ecosystem Management & (And) A Post-Sovereign Transboundary Governance, Bradley Karkkainen

San Diego International Law Journal

This paper argues that for purposes of managing transboundary environment problems in general, and marine ecosystems in particular, the role of international law as traditionally understood is somewhat overrated. Binding international legal obligations owed by states to other states often turn out to be a good deal less important in environmental problem solving than is commonly supposed by many international lawyers, legal scholars, and environmental NGOs (non-governmental organizations). Specifically, this paper argues that emphasis on binding multilateral environmental agreements among sovereign states is often misplaced and possibly even counterproductive, insofar as it threatens to divert attention from more promising strategies …


Japan, The North Atlantic Triangle, And The Pacific Fisheries: A Perspective On The Origins Of Modern Ocean Law, 1930-1953, Harry N. Scheiber Nov 2004

Japan, The North Atlantic Triangle, And The Pacific Fisheries: A Perspective On The Origins Of Modern Ocean Law, 1930-1953, Harry N. Scheiber

San Diego International Law Journal

I seek to establish here the degree to which multilateralism prevailed in the postwar era, or instead was overcome by unilateralist objectives and methods in pursuit of national interests. The empirical basis and special focus in much of my analysis is the discussion of Canada's role in regard to the diplomacy of the Pacific fisheries and more generally in regard to the process of developing modern ocean law as reflected in Canadian-U.S.-Japanese-British relations.


Flags Of Convenience Before The Law Of The Sea Tribunal, Tullio Treves Nov 2004

Flags Of Convenience Before The Law Of The Sea Tribunal, Tullio Treves

San Diego International Law Journal

Reflagged vessels and vessels flying flags of convenience (two phenomena that most often coexist) are frequent features in cases brought before the International Tribunal for the Law of the Sea (ITLOS or the Tribunal). Of all the cases decided by the Tribunal, only the Southern Bluefin Tuna cases and the MOX Plant case had nothing to do with this phenomenon; and only the former, which concerns fishing, somehow involves ships.


Scientific Cooperation In The North Pacific: The Pices Project, Warren S. Wooster, Sara F. Tjossem Nov 2004

Scientific Cooperation In The North Pacific: The Pices Project, Warren S. Wooster, Sara F. Tjossem

San Diego International Law Journal

While individuals carry out scientific research, their local, national, and international institutions also play an important role. This is particularly true in the case of marine science, where the vast scale and complexity of ocean resources demands not only cooperation among individuals and their institutions, but also an interdisciplinary approach that allows for interaction among fields such as physics and biology. Marine science also demands effective interaction between those who seek understanding of natural systems and their resources and those who wish to apply that understanding in utilizing those resources.


Do Punitive Damages Compensate Society?, Michael B. Kelly Nov 2004

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 …


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 Nov 2004

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' …


Reforming Reprehensibility: The Continued Viability Of Multiple Punitive Damages After State Farm V. Campbell, Rachel M. Janutis Nov 2004

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.


Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy Nov 2004

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 …


Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar Nov 2004

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 …


False Endorsement Or First Amendment?: An Analysis Of Celebrity Trademark Rights And Artistic Expression, Joshua Beser Nov 2004

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 …


Comparing Remedies For School Desegregation And Employment Discrimination: Can Employees Now Help Schools?, Candace Saari Kovacic-Fleishcer Nov 2004

Comparing Remedies For School Desegregation And Employment Discrimination: Can Employees Now Help Schools?, Candace Saari Kovacic-Fleishcer

San Diego Law Review

This Article compares and contrasts the lack of success in desegregating the schools with the greater success in eliminating discrimination from the workplace and suggests that the workplace and schoolhouse can act together for the benefit of both. Part II theorizes that Brown might, in hindsight, have been more successfully implemented and demonstrates why what might have been done earlier probably would not work today. Part III compares the plight of students who have not been helped by Brown with the plight of working parents whose family demands have kept them from sharing fully in the promise of Title VII. …


The Rise And Decline Of Structural Remedies, Russell L. Weaver Nov 2004

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.


California's Unfair Competition Law - Making Sure The Avenger Is Not Guilty Of The Greater Game, Mathieu Blackston Nov 2004

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."


Introduction: Third Remedies Discussion Forum, Russel L. Weaver Nov 2004

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.


The Republican Model And Punitive Damages, David F. Partlett Nov 2004

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 …


Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas Nov 2004

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 …


Writing Highs And Lows, Kimberly A. Yuracko Nov 2004

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.