Law Commons^™

Explanation, Vindication, And The Role Of Normative Theory In Legal Scholarship, Connie S. Rosati

San Diego Law Review

I find Yuracko's inquiry quite intriguing, but I have doubts about the central thesis. My aim, in the discussion that follows, is to press Yuracko on two fronts, one methodological, the other substantive. As concerns substance, I shall say a bit as this commentary progresses about why Yuracko would need much more support to make good on her claim that an implicit perfectionism explains decisional antidiscrimination law. My chief interest, however, lies with certain questions as to what methodology she means to follow in her efforts to develop a more complete theory of employment discrimination law. Yuracko's approach is one …

Discriminating Shoppers Beware, Dana K. Nelkin

San Diego Law Review

Such a theory suggests that we need to answer the following question in judging the moral permissibility of discriminatory shopping: Is this act of discriminatory shopping likely to undermine the public equality of our society? To answer this question in turn requires that we check two ways in which public equality could be undermined: first, by people interpreting our actions as sending a message of social inferiority and internalized shame; and second, by exacerbating and amplifying preexisting relationships of injustice.

An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer

Duke Law Journal

No abstract provided.

The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined?, Allison B. Jones

Duke Law Journal

No abstract provided.

Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, Kenneth A. Bamberger

Duke Law Journal

Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk-from financial, data and homeland security risk to the risk of conflicts of interest-increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion.

Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii

Duke Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

Moving Past Hippies And Harassment: A Historical Approach To Sex, Appearance, And The Workplace, Erica Williamson

Duke Law Journal

No abstract provided.

The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen

Scholarly Works

Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort of …

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

Scholarly Works

In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide …

A Teacher's Teacher, Lonnie T. Brown

Scholarly Works

This article is a tribute to Harold G. Maier which focuses on his career and his influence on Professor Brown.

Harold G. Maier: A World Class Fellow Indeed, Kurtz

Scholarly Works

Hal Maier has played many roles in my life: he has been my teacher, my boss, my advisor, my colleague, and most and best of all, my friend. In all those roles, he has exhibited enthusiasm, patience, tact, and brilliance. Not at all a bad combination, I would say. This is an article in tribute to Harold G. Maier.

J. Eric Dibbern On Forbidden Families: Family Unification And Child Registration In East Jerusalem By Yael Stein. Hamoked: Center For The Defense Of The Individual, 2004. 41pp., J. Eric Dibbern

Human Rights & Human Welfare

A review of:

Forbidden Families: Family Unification and Child Registration in East Jerusalem by Yael Stein. HaMoked: Center for the Defense of the Individual, 2004. 41pp.

Sarah Bania-Dobyns On New Terror, New Wars By Paul Gilbert. Washington, Dc: Georgetown University Press, 2003. 176pp., Sarah Bania-Dobyns

Human Rights & Human Welfare

A review of:

New Terror, New Wars by Paul Gilbert. Washington, DC: Georgetown University Press, 2003. 176pp.

Foreword, Shanish M. Aloor

San Diego International Law Journal

The articles appearing in Volume 8 of the San Diego International Law Journal seek to offer insight and understanding into the international community. The first two articles examine the complexities involved in litigating international causes of action. Philip Moreman assesses the use of private rights of action before an international forum to enforce international laws. The article compares private rights of action with regulatory enforcement mechanisms to evaluate the respective costs and benefits. Yann-Huei Song examines the prospect of judicial intervention in fishery disputes involving fishing entities in Taiwan. The issue is complex because Taiwan is a not a member …

The International Tribunal For The Law Of The Sea And The Possibility Of Judicial Settlement Of Disputes Involving The Fishing Entity Of Taiwan - Taking Ccsbt As An Example, Yann-Huei Song

San Diego International Law Journal

The main purpose of this paper is to assess the possibility of judicial settlement of fishery disputes involving the fishing entity of Taiwan and examine the legal questions regarding jurisdiction over the disputes. This analysis is based on the articles related to dispute settlement that are provided in the SBT Convention, the ITLOS Statute and the international law of the sea and the judicial practice of the ITLOS and other relevant arbitration courts in the Southern Bluefin Tuna case. Following this introductory section, Section II describes the establishment of the CCSBT and the selection and application of the methods of …

Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu

San Diego International Law Journal

These developments and mutual correlating interests underscore the rising trend in the number of international co-productions and cinematographic co-operations with India. Still, the practice of movie making in India differs in many ways from industry structures in the U.S. or Germany, which shall be analyzed as potential co-production partners. Contractual relations, industry regulations, involved parties, and the legal rules are so distinct, that a comparative view from a producer's perspective shall bring into light the frameworks and copyright issues of international film co-productions involving India.

U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White

San Diego International Law Journal

Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …

Vat? A Look Inside Canada's Experience With The Goods And Services Tax, Brandon A. Ketterman

San Diego International Law Journal

Consumption taxes have been and continue to be utilized as a staple revenue producer within systems of taxation. The value-added tax (VAT) is one form of consumption tax that has grown in popularity among nations over the last several decades. In fact, after the passage of a goods and services tax (one type of VAT) in Australia in 2000, the United States now stands alone as the only remaining OECD nation, among its 30 members, without some form of a value-added tax on consumption. As the massive topic of tax reform continually appears at the forefront of the political landscape, …

V.43-4, 2006 Masthead

San Diego Law Review

No abstract provided.

Introduction, Larry Alexander

San Diego Law Review

The outstanding collection of articles and comments thereon that follows this Introduction constitute the 2006 Editors' Symposium of the San Diego Law Review. The theme for this symposium is: "The Rights and Wrongs of Discrimination."

Defining The Antidiscrimination Norm To Defend It, Mark Kelman

San Diego Law Review

We may mean very different things when we say that an actor (the putative defendant in a lawsuit designed to alter the behavior in which he would engage but-for legal intervention) "discriminates" against another person (the suit's putative plaintiff). Recognizing this difference is helpful because it demonstrates that we should be extremely clear in using a term that does not have a single, uncontested meaning. More importantly, it reveals why we have certain norms against private discrimination, particularly in the employment market and a subset of markets in which customers purchase goods and services.

What Is Wrongful Discrimination?, Richard J. Arneson

San Diego Law Review

Legal prohibition of some types of discriminatory conduct may be morally acceptable even though the conduct being prohibited would not be immoral in the absence of legal prohibition. Consider Thomas Schelling's analysis of patterns of racial segregation in residential housing. If one sees a sharply segregated housing segregation pattern (for example, African-Americans living next to African-Americans, whites living next to whites, and African-Americans living next to whites only at the neighborhoods - edges) even though there is no legal requirement that forces this result, one might suppose that what explains the segregation is a strong desire of almost all members …

Justice For Large Earlobes! A Comment On Richard Arneson's "What Is Wrongful Discrimination?", Andrew Koppelman

San Diego Law Review

At different points in his paper, Professor Arneson offers two inconsistent descriptions of what his paper tries to accomplish. The first is to answer his title question. The second is to answer that question within a deontological morality that holds, contrary to act consequentialism, that what is morally right and wrong ... is fixed by ... moral constraints [which] mainly take the form of moral rights of others that are correlative with moral obligations that one must not violate these rights. In a footnote, Professor Arneson explains that this assumed moral framework is not the one I would ultimately endorse. …

Private Discrimination: A Prioritarian, Desert-Accommodating Account, Kasper Lippert-Rasmussen

San Diego Law Review

Most of us would consider a state's discrimination against its citizens-say, by refusing to hire them on account of their sex, race, religion, or ethnicity-clearly unjust, something in urgent need of rectification. Yet we often take a less censorious view of discriminatory acts by private individuals who choose not to share their neighborhood with, associate with, trade with, work with, befriend, marry, or be buried in the same graveyards as people of a different sex, race, religion, or ethnicity. On reflection, this asymmetry is puzzling. It cannot be explained by saying that state discrimination has graver consequences involving more people …

Sameness, Subordination, And Perfectionism: Toward A More Complete Theory Of Employment Discrimination Law, Kimberly A. Yuracko

San Diego Law Review

This Article focuses on two muddled and contested areas of sex discrimination case law - the first deals with sexuality and the second with gender nonconformity in the workplace. Both are areas in which courts, at times, impose significant accommodationist demands on employers in the name of Title VII's antidiscrimination mandate. Section II addresses cases in which employers attempt to discriminate on the basis of sex in order to protect customers' personal or sexual privacy or to provide customers with a particular kind of sexual titillation. As a general matter, courts permit discrimination in the first type of case - …

Reflections On Equality, Adjudication, And The Regulation Of Sexuality At Work: A Response To Kim Yuracko, Orly Lobel

San Diego Law Review

I make three observations on Yuracko's thesis to explain these ideas. First, in Part II, I argue that it is possible to explain the case law distinctions between various categories of BFOQ claims within the liberal model of antidiscrimination. Specifically, I turn to a more robust analysis of the antisubordination paradigm than Yuracko describes in her paper. I argue that we should consider the dangers of under-inclusion in one sector as the result of structural inequalities across the workforce. Because of the need to take a more macro approach in addressing the effects of discrimination on the market at large, …

Reflections On Discrimination, Alan Wertheimer

San Diego Law Review

In the background are two claims that I want to put on the table. First, although it may be wrong for people to engage in a particular form of discrimination, it does not follow that the government should seek to prevent that discrimination. Second, although it may not be wrong for people to engage in a particular form of discrimination, it does not follow that it would be wrong for the government to seek to prevent that discrimination or to mitigate its effects. The wrongness of individual behavior is obviously related to the justifiability of state action, but the correlation …

Left Libertarianism And Private Discrimination, Peter Vallentyne

San Diego Law Review

Left-libertarianism, like the more familiar right-libertarianism, holds that agents initially fully own themselves. Unlike right-libertarianism, however, it views natural resources as belonging to everyone in some egalitarian manner. Left-libertarianism is thus a form of liberal egalitarianism in that it recognizes both liberty rights and equality rights. In this Article, I shall lay out the reasons why (1) left libertarianism holds that (a) private discrimination is not intrinsically unjust and (b) it is intrinsically unjust for the state to prohibit private discrimination; and (2) that, nonetheless, a plausible version of left libertarianism holds that it is unjust for the state, and …

Left Libertarianism: What's In It For Me?, H. E. Baber

San Diego Law Review

Left libertarianism cannot effectively promote equal opportunity for well-being. Neither direct distributions from the rent fund nor financial incentives for firms will significantly reduce gross, ongoing discrimination which locks most women into a narrow range of boring, dead-end, pink collar drudge jobs and puts minorities at a disadvantage in hiring, housing, and access to credit. Left libertarianism: What's in it for me? Not much.