Law Commons^™

Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells

Scholarly Works

While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state …

School Funding Litigation: Who's Winning The War?, John Dayton, Anne Proffitt Dupre

Scholarly Works

This Article examines how the landscape of school funding litigation has changed over the three decades since Serrano and Rodriguez. The first part of the Article sets forth the history of school funding litigation since Serrano and Rodriguez and unravels the legal theories that have driven the school financing cases, explaining past dispositions and point out likely future trends. At first blush it would appear that the attorneys seeking social change through greater equity in school funding are litigating similar issues in each state. Yet judges have approached these matters from different directions with results that vary significantly from state …

Reconsider Old Taboo, Scott Dodson

Popular Media

The recent cries of judicial activism need to be scrutinized. Are decisions like Lawrence and Goodrich really activist and, if so, is that even something to be discouraged? In this op-ed, I look closely at the "activism" of these decisions and conclude that there is nothing inherently activist about them. I also conclude that, even if there is, activism is defensible in certain cases when it returns to the people the power to exercise their own individual liberties.

Law Library Briefs, Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Law Library Briefs, Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Medieval Church Norms And Fiduciary Duties In Partnership, Dennis J. Callahan

Cardozo Law Review

No abstract provided.

Volume 29, No. 3

The Weldon Times

A student-run newspaper published at the School of Law at Dalhousie University.

Editors: Shawn Tock, Jonathon Krashinsky, Michael Schalke, Nate Russell

Photo Editor: Mark Dunsmuir

Introduction: Private Parties As Defendants In Civil Rights Litigation, Myriam Gilles

Cardozo Law Review

No abstract provided.

The Emerging Section 1983 Private Party Defense, Sheldon Nahmod

Cardozo Law Review

No abstract provided.

Price Considerations In The Market For Corporate Law, Michal Barzuza

Cardozo Law Review

No abstract provided.

Nov. 1, 2004, Ltr From D. Hunter, Pec, To M. Taylor, Cao, Re Changes In Ifc Safeguard Policies, David Hunter

CAO General 1999-Present

No abstract provided.

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

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.

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

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

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.

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.

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.

V.41-4, 2004 Masthead

San Diego Law Review

No abstract provided.

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

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 …

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

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 …

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 …

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 …

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' …

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.

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 …

"Preliminarily" Enjoining Elections: A Tale Of Two Ninth Circuit Panels, James M. Fischer

San Diego Law Review

In the context of many election challenges, given time constraints involved, preliminary injunctions will be the remedy of necessity for those who seek postponement of the election. This Article examines whether the tests for granting preliminary injunctions are adequate for the task and whether the standards for reviewing district court decisions are sufficient.

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. …