Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- International Law (19)
- Environmental Law (14)
- Law and Philosophy (11)
- Comparative and Foreign Law (7)
- Human Rights Law (6)
-
- Law and Society (5)
- Constitutional Law (3)
- Courts (2)
- International Humanitarian Law (2)
- Administrative Law (1)
- Air and Space Law (1)
- Banking and Finance Law (1)
- Civil Rights and Discrimination (1)
- Criminal Law (1)
- Entertainment, Arts, and Sports Law (1)
- Housing Law (1)
- Intellectual Property Law (1)
- Internet Law (1)
- Labor and Employment Law (1)
- Law and Economics (1)
- Law of the Sea (1)
- Legislation (1)
- National Security Law (1)
- Property Law and Real Estate (1)
- Public Law and Legal Theory (1)
- Transportation Law (1)
- Workers' Compensation Law (1)
- Keyword
-
- Environmental law (5)
- China (3)
- Climate (3)
- Clean Water Act (2)
- Environmental Law (2)
-
- Federalism (2)
- Greenhouse Gas Mitigation (2)
- Greenhouse gas mitigation (2)
- Human rights (2)
- Law (2)
- State (2)
- Torture (2)
- United Nations (2)
- War crimes (2)
- 1949 Geneva Conventions (1)
- Act (1)
- Action (1)
- Adaption (1)
- Against (1)
- Alice (1)
- Alienation of property (1)
- America (1)
- Ann carlson (1)
- Annual (1)
- Anti-obesity legislation (1)
- Antiquities (1)
- Appliance standards (1)
- Art and International law (1)
- Art law (1)
- Article 1 section 8 (1)
Articles 1 - 30 of 69
Full-Text Articles in Law
On This Side Of The Law And On That Side Of The Law, Maimon Schwarzschild
On This Side Of The Law And On That Side Of The Law, Maimon Schwarzschild
San Diego Law Review
Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or Good. Value pluralism is probably the central idea - you could say the single overarching idea - in the work of Sir Isaiah Berlin, the English philosopher and historian of ideas. Berlin's theme is that individuals, and societies as well, have ideals and aspirations that conflict, and that therefore cannot all be fully realized. Thus a society cannot have perfect equality and perfect liberty because some people will exercise freedom to differentiate themselves, and hence to …
Pluralism, Liberalism, And Distributive Justice, George Crowder
Pluralism, Liberalism, And Distributive Justice, George Crowder
San Diego Law Review
My general task in this paper is to argue that Ronald Dworkin is incorrect about the indeterminate and paralyzing character of pluralism. The background worry that motivates Dworkin's attack on the truth of pluralism is misplaced. Pluralism is not the field of indeterminacy and reform paralysis that he supposes it to be. More specifically, I argue this point with reference to the question of justice in economic distribution. Using the liberal-pluralist approach I have developed elsewhere, I try to show that a value-pluralist approach to distributive justice, far from leading to inaction or acquiescence in existing patterns of power, commends …
Normative Conflict In International Law, Carmen Pavel
Normative Conflict In International Law, Carmen Pavel
San Diego Law Review
In Part II, I will illustrate the problem of conflict in international law by drawing on two cases in international trade law. I will then argue in Parts III and IV that legal conflict often represents a genuine normative conflict grounded in our multiple, incommensurable, and potentially conflicting moral commitments. In doing so, I will deflect potential skepticism about the reality of normative conflict in international law. Drawing from existing international legal practice, I will show in Part IV that we can resort to a substantial toolbox of rules and principles to reconcile legal norms that are in tension with …
Value Pluralism And The Two Concepts Of Rights, Horacio Spector
Value Pluralism And The Two Concepts Of Rights, Horacio Spector
San Diego Law Review
In Part II, I will indicate how the Will Theory and the Interest Theory each capture distinct features of the usage of right in contemporary moral and legal discourse. However, I will also argue that neither of the two theories is successful in explaining all the properties of rights. In Part III, I will argue that the debate between the two theories is irresolvable because the Will Theory and the Interest Theory reflect the meaning of rights within rival and incommensurable value paradigms existing in today's moral and legal culture. The incommensurability of the underlying value paradigms leads to radical …
Introduction To The 2009 Editors' Symposium: Isaiah Berlin, Value Pluralism, And The Law, Larry Alexander
Introduction To The 2009 Editors' Symposium: Isaiah Berlin, Value Pluralism, And The Law, Larry Alexander
San Diego Law Review
The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2009 Editors' Symposium of the San Diego Law Review.
What Value Pluralism Means For Legal-Constitutional Orders, William A. Galston
What Value Pluralism Means For Legal-Constitutional Orders, William A. Galston
San Diego Law Review
I begin by summarizing my version of liberal pluralism, emphasizing that the notion of pluralism implies not only value conflicts and hard choices but also a set of normative principles that are capable of guiding public policy. I then use that framework to adjudicate between rival approaches to distributive justice within liberalism, starting with the basic division between laissez-faire and egalitarian-redistributive approaches and proceeding to the leading alternatives within egalitarianism.
Berlin's Methodological Parsimony, Daniel M. Weinstock
Berlin's Methodological Parsimony, Daniel M. Weinstock
San Diego Law Review
In this Article, I want to suggest a third line of argument that can be retrieved from Two Concepts. It is primarily methodological. It enjoins political theorists to define the extension of normative concepts in a manner that makes as perspicuous as possible the various normative considerations that are relevant to political decisionmaking. Although related to the pluralist defense of negative freedom briefly alluded to above, I will suggest that it is distinct from it, and that it allows us to address important but under appreciated lacunae that beset the argument from value pluralism, as well as the argument according …
The Path Between Value Pluralism And Liberal Political Order: Questioning The Connection, Patrick Neal
The Path Between Value Pluralism And Liberal Political Order: Questioning The Connection, Patrick Neal
San Diego Law Review
After a few terminological preliminaries in Part II, I turn to two primary tasks. First, in Part III, I raise questions that seem to me to confront the basic logic of the connection between value pluralism and liberalism. Second, in Part IV, I discuss at length the "argument from diversity" articulated by George Crowder in support of the view that value pluralism supports liberalism. This line of argument is only one of a number that Crowder advances in support of that view, and so doubts about its success do not necessarily implicate the other lines of argument he pursues. However, …
The Plural Implications Of Value Pluralism: A Comment On Maimon Schwarzschild's On This Side Of The Law And On That Side Of The Law, Iddo Porat
San Diego Law Review
I suggest that there are two main views that can be found in Professor Schwarzschild's paper. The first is a strong suspicion of any type of centralized power, especially judicial power, as potentially stifling the plurality of values in society and imposing a monolithic view from above. This theme makes federalism and judicial activism especially central issues in the paper, and I will concentrate on both of them in my comment. The second view regarding the application of value pluralism is more subtle. It is a Burkean defense of traditional institutions, arguing that they represent a way of life in …
Value Pluralism Does Not Support Liberalism: A Comment On William A. Galston's What Value Pluralism Means For Legal-Constitutional Orders, Richard J. Arnesto
Value Pluralism Does Not Support Liberalism: A Comment On William A. Galston's What Value Pluralism Means For Legal-Constitutional Orders, Richard J. Arnesto
San Diego Law Review
In a free society, there is a strong presumption in favor of letting individuals act as they choose without interference by others. William A. Galston has developed this argument with exemplary clarity. He is wrong. The idea that value incommensurability is a reason for toleration of diverse ways of life and protection of the individual's freedom to choose among diverse ways of life is a mistake. Value pluralism does not establish any normative presumption in favor of liberty, so the worry "does this presumption hold without limit," or "are there good reasons that constrain it at some point," is otiose.
Urbanization, The Intelligentsia, And Meaning Change: A Comment On Horacio Spector's Value Pluralism And The Two Concepts Of Rights, Christopher T. Wonnell
Urbanization, The Intelligentsia, And Meaning Change: A Comment On Horacio Spector's Value Pluralism And The Two Concepts Of Rights, Christopher T. Wonnell
San Diego Law Review
In my view, Professor Spector's paper is more persuasive in identifying the rhetorical change that has taken place than in providing a causal account of its genesis. The traditional rights of private property and freedom of contract do seem a long way from the new rights to receive medical care or safe and affordable housing. However, the rural-to-urban hypothesis for the cause of this change is not especially persuasive. Laissez-faire thinking of autonomous private spheres was at its height in the late eighteenth and early nineteenth centuries, among conditions far more urban and commercial than had historically been the case …
Foreword, E. Erin Robbins
Foreword, E. Erin Robbins
San Diego International Law Journal
The eleventh issue of the San Diego International Law Journal is composed of articles examining the world's reaction to conflict and of ideas throughout the world can bring about major shifts in socio-political thought by challenging the status quo, often resulting in conflict within or among nations. As the world becomes a more interconnected society these international issues become more important within U.S. and International Jurisprudence. The authors within this issue explore the myriad of responses a nation may take when presented with a potential conflict.
The Gaza War Of 2009: Applying International Humanitarian Law To Israel And Hamas, Justus Reid Weiner, Avi Bell
The Gaza War Of 2009: Applying International Humanitarian Law To Israel And Hamas, Justus Reid Weiner, Avi Bell
San Diego International Law Journal
This Article explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza's borders. It first examines legal issues raised by Palestinian conduct and then turns to legal issues raised by Israeli conduct. As will be demonstrated, criticisms of Israeli behavior ... lack any basis in international law. By contrast, Palestinian behaviors that are rarely criticized constitute severe violations of international law.
Constitutions, International Law, And The Settlement Function Of Law: A Schema For Further Reflection, Larry Alexander
Constitutions, International Law, And The Settlement Function Of Law: A Schema For Further Reflection, Larry Alexander
San Diego International Law Journal
Imagine a community living in a defined geographical area. Its members generally believe that their actions should be guided by moral norms, and they generally comply with those norms as they understand them. And, from our external vantage point, we believe that they are indeed subject to moral norms and should comply with them, both in dealing with each other and with those outside their community....
Silencing The Silk Road: China's Language Policy In The Xinjiang Uyghur Autonomous Region, Aurora Elizabeth Bewicke
Silencing The Silk Road: China's Language Policy In The Xinjiang Uyghur Autonomous Region, Aurora Elizabeth Bewicke
San Diego International Law Journal
As part of its push for mono-culturalism throughout China in general, and in the XUAR in particular, China's language policy is at the forefront of what some have labeled China's program of "cultural genocide." While most agree that this provocative terminology is overstated, China's language policy may well be at the root of various human rights violations. Part II of this article will describe the historical context and modern realities of China's language policy in the XUAR, which is compromised of both overt policies in the form of laws, regulations, and policy statements as well as more covert policies, which …
Copyright Or Trademark? Can One Boy Wizard Prevent Film Title Duplication?, Anna Phillips
Copyright Or Trademark? Can One Boy Wizard Prevent Film Title Duplication?, Anna Phillips
San Diego International Law Journal
This Comment will examine the various approaches that India, the United Kingdom, and the United States take in dealing with film title disputes. Second, this Comment will discuss a case brought by Warner Brothers regrding a Harry Potter film title dispute in India and how the outcome of the case affects title infringement issues... Finally, this Comment will discuss a possible loophole in current trademark regulations regarding film titles that will support the argument that countries should use both copyright and trademark law to minimize the release of film titles that are similar or identical to those already on the …
Towards A New Transitional Justice Model: Assessing The Serbian Case, Roozbeh (Rudy) B. Baker
Towards A New Transitional Justice Model: Assessing The Serbian Case, Roozbeh (Rudy) B. Baker
San Diego International Law Journal
This Article will survey the key episodes of transitional justice in various countries since the 1970s, and then apply the lessons gleaned to the transition of Serbia during the first five years following the deposition of authoritarian ruler Slobodan Milosevic in October 200, and the subsequent establishment of democratic rule...This article will show that the empirical evidence demonstrates that the outcome of the transitional justice process a country undertakes, upon its political stability, needs to be taken into account when fashioning said process.
An International Perspective On Battling The Bulge: Japan's Anti-Obesity Legislation And Its Potential Impact On Waistlines Around The World, Christin Lawler
An International Perspective On Battling The Bulge: Japan's Anti-Obesity Legislation And Its Potential Impact On Waistlines Around The World, Christin Lawler
San Diego International Law Journal
This Comment identifies six factors which my be analyzed to predict the outcome of Japan's new "Metabo" legislation: (1) the compelling need for anti-obesity legislation; (2) the broad authority vested in Japanese physicians and medical policymakers; (3) the Japanese cultural emphasis on harmony; (4) the structure of the Japanese Constitution; (5) the legislation's enforcement mechanisms; and (6) the costs of the program. This Comment predicts that although the cost of implementing the program could pose a serious impediment to initiating the anti-obesity campaign on a national scale, the new legislation is likely to succeed in decreasing Japanese obesity.
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
San Diego International Law Journal
The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.
Making Transfer Of Clean Technology Work: Lessons Of The Clean Development Mechanism, Mei Gechlik
Making Transfer Of Clean Technology Work: Lessons Of The Clean Development Mechanism, Mei Gechlik
San Diego International Law Journal
This Article takes a closer look at the case of China to fill the gap. It draws on numerous sources including Chinese laws and regulations, the country's policies on climate change, the country's technological capabilities and business environment, observations made by CDM specialists, and other studies of CDM projects. Such a comprehensive discussion, together with Dechezleprete et al.'s findings, will present a more complete picture of what actually drives the transfer of clean technologies to China and will, therefore, help design an effective post-Kyoto framework to facilitate international diffusion of clean technologies.
The Insurance Relationship As Relational Contract And The "Fairly Debatable" Rule For First-Party Bad Faith, Jay M. Feinman
The Insurance Relationship As Relational Contract And The "Fairly Debatable" Rule For First-Party Bad Faith, Jay M. Feinman
San Diego Law Review
This Article uses relational contract theory to discuss the standard to be applied to evaluate the behavior of insurance companies in first-party bad faith cases. The Article first briefly summarizes relational contract theory and describes the insurance contract as a prime example of a relational contract. It then describes the law of bad faith in first-party insurance cases-cases in which a policyholder alleges that the insurance company has violated the duty of good faith and fair dealing that is present in every contract and intensified in insurance contracts. The most widely adopted standard for bad faith is the “fairly debatable” …
Warranties In The Box, James J. White
Warranties In The Box, James J. White
San Diego Law Review
I discuss judicial and legislative attempts to deal with the question of whether a warranty, seen for the first time by the buyer after the purchase has been concluded, can be part of the "basis of the bargain". Courts finding no claim sometimes invoke terminology familiar from many tort cases, that there is no "privity" between a manufacturer and a buyer once removed. I suggest how they might be handled in a case today. The proper result is indisputable, only the method is in question; to conclude otherwise would truly make the law an ass.
In Memoriam: Professor Richard E. Speidel 1933-2008, Kevin Cole
In Memoriam: Professor Richard E. Speidel 1933-2008, Kevin Cole
San Diego Law Review
This tribute first begins with a tribute from Dean Kevin Cole, outlining the accomplishments of Professor Richard Speidel, and is succeeded by personal tributes from the various authors of the articles contained in this volume of the San Diego Law Review.
A Unified Rationale For Section 2-607(3)(A) Notification, William H. Henning, William H. Lawrence
A Unified Rationale For Section 2-607(3)(A) Notification, William H. Henning, William H. Lawrence
San Diego Law Review
The premise of this Article is that the approach drafted by Professor Speidel is far superior to the original approach. The denial of any remedy to an aggrieved party because it stumbles with respect to some aspect of a notification is draconian, and section 2-607(3)(a) should not be retained in its present form. The original provision's requirement that notification be given within a reasonable time and its silence as to the required contents give the courts a great deal of discretion, and they can do much to ameliorate its harsh effects by using only the prejudicial effect of a delay …
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
San Diego Law Review
I will argue that Dick Speidel may have been correct in asserting that court adjustment makes sense in limited circumstances. But years ago, I allied myself with Speidel and I will only briefly review my reasons here. My main goal in this Article is to argue that nothing courts have decided or writers have analyzed since Aluminum Co. of America v. Essex Group, Ins (ALCOA), a somewhat infamous case in which the court adjusted a long-term contract, proves that court adjustment is always wrongheaded. In fact, as with so many policy issues, we may never identify the best judicial approach …
Blowing The Whistle On Mandatory Arbitration: Unconscionability As A Signaling Device, Charles L. Knapp
Blowing The Whistle On Mandatory Arbitration: Unconscionability As A Signaling Device, Charles L. Knapp
San Diego Law Review
This Article is concerned with two areas of American law and their intersection. One is the legal doctrine - which exists in both common law and statutory form - known as "unconscionability." The other is the form of dispute resolution called "arbitration." These would on the face of it seem to be unrelated concepts; unconscionability is generally thought of as part of the law contract, while arbitration is essentially a type of procedure, one a number of mechanisms for settling disputes between private parties. By an accident of legal history, however, the two notions appear to be in the process …
Arbitrator Integrity: The Transient And The Permanent, William W. Park
Arbitrator Integrity: The Transient And The Permanent, William W. Park
San Diego Law Review
The constant movement in arbitrators' lives and activities requires regular adjustment in both formulation and application of contours for acceptable and unacceptable arbitrator behavior. Legal claims should be decided on their merits, rather than according to a predisposition or interest in the outcome. A reasonable measure of arbitrator integrity remains both desirable and attainable. However, in a world of stubbornly heterogeneous legal cultures, each with its own divergent view of proper conduct, elaborating one common ethical plumb line for international arbitration poses special challenges. Fair-mindedness and intelligence remain the most sought after qualities in arbitrators. To reduce the risk of …