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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 …
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 …
The Collateral Source Rule In Contract Cases, Joseph M. Perillo
The Collateral Source Rule In Contract Cases, Joseph M. Perillo
San Diego Law Review
The issue in a collateral source case is: should contract damages be reduced by the amount of payments that the wronged party has received from a third party such as an insurer? This kind of question arises most frequently in tort cases involving property damage, personal injuries, or death, where a doctrine known as collateral source rule has evolved. Under this rule, except where changed by statute, damages assessed against a tortfeasor generally are not diminished by any payments received by the injured party from medical insurance, pension and disability plans, or any sources other than the tortfeasor or the …
Good Faith Revisited: Some Brief Remarks Dedicated To The Late Richard E. Speidel - Friend, Co-Author, And U.C.C. Specialist, Robert S. Summers
Good Faith Revisited: Some Brief Remarks Dedicated To The Late Richard E. Speidel - Friend, Co-Author, And U.C.C. Specialist, Robert S. Summers
San Diego Law Review
Here, in regard to the U.C.C., I will focus, but only in a general way, on U.C.C. section 1-304 - formerly section 1-203 - which imposes a general obligation of good faith. I will also address, but again only in a general way, the Restatement (Second) of Contracts and general contract law dealing with good faith. I will not undertake to provide extended analyses of the U.C.C. or Restatement, nor extended analyses of the case law under the Code or in general contract law.
Evidence And Ideology In Assessing The Effectiveness Of Financial Literacy Education, Lauren E. Willis
Evidence And Ideology In Assessing The Effectiveness Of Financial Literacy Education, Lauren E. Willis
San Diego Law Review
Financial literacy education has long been promoted as key to consumer financial well-being. It is widely embraced as an effective alternative to substantive legal regulation. Yet its effectiveness has never had more than negligible empirical support. This review (1) sets forth the model of financial literacy education subscribed to by policymakers today, (2) identifies pervasive and serious limitations in existing empirical research used by policymakers as evidence of the effectiveness of this education, and (3) recommends a number of alternative public policies suggested by the existing research. Researchers should be particularly cautious in the presentation of their findings, so that …
State Laws For Student Suspension Procedures: The Other Progeny Of Goss V. Lopez, Perry A. Zirkel, Mark N. Covelle
State Laws For Student Suspension Procedures: The Other Progeny Of Goss V. Lopez, Perry A. Zirkel, Mark N. Covelle
San Diego Law Review
In the Supreme Court’s seminal 1975 decision, Goss v. Lopez, the Court held: [D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. In his dissent to the Goss decision, writing on behalf of three other members of the Court, Justice Powell countered: The Court holds for the first time that the federal courts, rather than educational officials and state …
The Hidden Foreign Law Debate In Heller: The Proportionality Approach In American Constitutional Law, Moshe Cohen-Eliya, Iddo Porat
The Hidden Foreign Law Debate In Heller: The Proportionality Approach In American Constitutional Law, Moshe Cohen-Eliya, Iddo Porat
San Diego Law Review
This Article first describes the unique attributes of the use of foreign law in the Heller dissent, and then addresses the soundness of the specific claim that the United States and Europe share the common methodology of proportionality. This Article argues that Justice Breyer was correct in his contention that a doctrinal framework very similar to proportionality is embedded in American constitutional law in the guise of balancing. However, this Article argues that Breyer missed an important divergence between the two doctrines: the significantly different ways in which balancing and proportionality are situated in America and Europe, respectively, owing to …
The Violent Bear It Away: Emmett Till And The Modernization Of Law Enforcement In Mississippi, Anders Walker
The Violent Bear It Away: Emmett Till And The Modernization Of Law Enforcement In Mississippi, Anders Walker
San Diego Law Review
Sometime during the summer of 1955, Emmett Till left the bustling metropolis of Chicago for the quiet pastoral of the Mississippi Delta. Till’s mother had arranged for her son to spend time with his uncle, Moses Wright, who lived in a small town named Money, not far from the sleepy oak-lined streets of Greenwood. Only fourteen, Till knew little of Mississippi’s past or of its strict code of racial conduct, a code that was enforced both legally, through an elaborate system of statutory prohibitions on interracial contact, and extralegally, through vigilante action. Till’s unfamiliarity with local norms made him bold …
“Looking And Feeling Your Best”: A Comprehensive Approach To Groom And Dress Policies Under Title Vii, Elizabeth Malcom
“Looking And Feeling Your Best”: A Comprehensive Approach To Groom And Dress Policies Under Title Vii, Elizabeth Malcom
San Diego Law Review
Employers use groom and dress policies to broadly regulate the appearance of employees, dictating all aspects from the most basic appearance requirements, such as cleanliness and proper attire, down to the minutest details, including hair style, nail length, and even lipstick color. However, when an employer differentiates between male and female employees in appearance policies, the employer runs the risk of violating Title VII, a federal statute that prohibits sex discrimination in the workplace. Title VII was enacted to eradicate the discriminatory treatment of men and women resulting from sex stereotypes, and to eliminate the traditional obstacles faced by women …
“Let’S Do The Time Warp Again”: Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
“Let’S Do The Time Warp Again”: Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris
San Diego Law Review
Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" …
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
San Diego Law Review
This Article is a follow-up to a previous article, Networks of Fairness Review in Corporate Law (Fairness). After an overview of the fundamentals of the fairness standard and network theory, Fairness deployed network and statistical analyses to conduct an empirical study of the fairness doctrine as articulated by the Delaware Supreme Court and the Delaware Court of Chancery. This initial analysis focused on the fairness standard for one principal reason: it is considered to be the most plaintiff-friendly standard of review, in marked distinction to the well-known business judgment rule (BJR). But there are also four other prominent standards of …