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2016

University of San Diego

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Full-Text Articles in Law

A Battlefield Map For Nfl V. Insurance Industry Re: Concussion Liabilities, Christopher C. French Dec 2016

A Battlefield Map For Nfl V. Insurance Industry Re: Concussion Liabilities, Christopher C. French

San Diego Law Review

When the superstar athlete—“Iron Mike” Webster—a nine-time NationalFootball League (NFL) Pro Bowler, four-time Super Bowl Champion, Hall of Fame center for the Pittsburgh Steelers—died at age fifty with severe brain dysfunction after becoming homeless and living in a truck, it was discovered he had a previously nameless disease, Chronic Traumatic Encephalopathy (CTE). The discovery of CTE opened the floodgates on interest in delayed manifestation brain diseases caused by repeated blows to the head. As part of that flood, many retired NFL players brought numerous class actions against the NFL for their alleged brain diseases caused by the repeated blows to …


When Everything Is Small: The Regulatory Challenge Of Scale In The Sharing Economy, Kellen Zale Dec 2016

When Everything Is Small: The Regulatory Challenge Of Scale In The Sharing Economy, Kellen Zale

San Diego Law Review

The sharing economy—the rapidly evolving sector of peer-to-peer home- sharing and ride-hailing transactions facilitated by platforms like Airbnb and Uber—offers the potential for economic growth, greater sustainability, and expanded access for underserved groups. But the massive number of small-scale activities that these platforms facilitate also causes negative cumulative impacts and exposes regulatory fractures, from the loss of long-term rental housing to discrimination against protected classes to increased burdens on public infrastructure. This Article contends that scale is a defining feature and fundamental challenge of the sharing economy. Small may be beautiful, but when everything is small, the regulatory challenge is …


Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite Dec 2016

Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite

San Diego Law Review

This Article addresses some of the inequities and offers a multi-faceted proposal to raise revenue and incentivize preferences for a more balanced approached to tax policy. First, I advance a proposal that offers solutions to shift certain aspects of the capital gains tax preferences toward the middle and lower class. To balance the costs, I then propose an option to phase out or eliminate other preferences that primarily benefit the wealthiest taxpayers. This balanced approach will allow the government to raise revenue and change the capital gains tax preferences from a rewards to an incentive-based system. Part II of this …


Catholic Social Teaching, The Right To Immigrate, And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Ii Dec 2016

Catholic Social Teaching, The Right To Immigrate, And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Ii

San Diego Law Review

A number of scholars have commented on the significance of religious traditions to the debate concerning immigration policy in the United States.[1] In this Article, we contend that the Catholic legal tradition is relevant to the contemporary debate among policymakers, as it balances policy considerationsof the right to immigrate as well as the right of a nation to regulate its borders advocated on both ends of the policy debate. Section I of this Article discusses the current policy debate concerning comprehensive immigration reform and recent major legislative proposals for comprehensive immigration reform, including the plan of the “Gang of Eight” …


V.53-4, 2016 Masthead Dec 2016

V.53-4, 2016 Masthead

San Diego Law Review

No abstract provided.


California’S Curse: Perpetual Drought And Persistent Land Development, Gabrielle Kavounas Dec 2016

California’S Curse: Perpetual Drought And Persistent Land Development, Gabrielle Kavounas

San Diego Law Review

This Comment argues that the California state legislature should take direct control of private water use rights through legislation that amends California’sConstitution Article X, Section 2, providing the state with the police powerto take back private water rights and centralize control over water management and distribution.[1] It also recommends imposing higher requirements for land development and water agency cooperation in standard form, state-controlled“general plans” to create efficiency in distributing water throughout the stateand in planning new land developments. The public trust doctrine, eminentdomain doctrine, and regulatory takings doctrine are possible justifications the state could use to effectuate the new legislation. …


Building A Bench: A Close Look At State Appellate Courts Constructed By The Respective Methods Of Judicial Selection, Diane M. Johnsen Dec 2016

Building A Bench: A Close Look At State Appellate Courts Constructed By The Respective Methods Of Judicial Selection, Diane M. Johnsen

San Diego Law Review

This Article analyzes detailed career-path and other demographic data to determine the extent to which the various judicial selection methods advance diverse candidates to the bench. The results show many similaritiesamong the mix of objective characteristics found on appellate benches across the states, regardless of selection method, but there are some important differences ... Part I discusses the history of judicial selection in the states and reviews the prior empirical and theoretical literature concerning judicial selection methods and the differences among judges produced by those selection methods, mainly with respect to gender, race, and localism. Part II identifies the data …


Motions 2016 Volume 53 Number 2, University Of San Diego School Of Law Student Bar Association Nov 2016

Motions 2016 Volume 53 Number 2, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.


Motions 2016 Volume 53 Number 1, University Of San Diego School Of Law Student Bar Association Oct 2016

Motions 2016 Volume 53 Number 1, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.


Consumers’ Obsession Becoming Retailers’ Possession: The Way That Retailers Are Benefiting From Consumers’ Presence On Social Media, Vivian Adame Oct 2016

Consumers’ Obsession Becoming Retailers’ Possession: The Way That Retailers Are Benefiting From Consumers’ Presence On Social Media, Vivian Adame

San Diego Law Review

Retailers can profit from consumers’ social media presence in two ways: (1) through inadequate privacy laws; and (2) through retailers’ reposting of consumers intellectual property uploaded to social media sites. The California Legislature passed the Online Privacy Protection Act (CalOPPA), which moved towards protecting the privacy rights of consumers. However, the Legislature’s inability to hold retailers accountable under CalOPPA leaves consumers susceptible to the invasive technologies retailers use to collect social media users’ information, which they in turn sell and profit from. To better protect consumers on social media, the legislature should first enact a privacy law restricting retailers’ and …


Notice And The Claim Presentation Requirements Under The California Government Claims Act: Recalibrating The Scales Of Justice, Samantha Lewis Oct 2016

Notice And The Claim Presentation Requirements Under The California Government Claims Act: Recalibrating The Scales Of Justice, Samantha Lewis

San Diego Law Review

To recalibrate the scales of justice, this Comment advocates for a statutory amendment that encompasses two changes. First, the amendment would require plaintiffs to present their government claims against the state directly to the public entity that allegedly caused the harm, instead of the VCGCB, thereby accomplishing the statute’s objective of providing notice to the state entity. Second, instead of the VCGCB assessing claims against the state, each state agency would have its own government claims office (GCO) handle government claims for the respective individualized entity. This would promote efficiency in the government claims process by cutting out the “middleman,” …


Negotiating The Terms Of Corporate Human Rights Liability Under Federal Law, R. George Wright Oct 2016

Negotiating The Terms Of Corporate Human Rights Liability Under Federal Law, R. George Wright

San Diego Law Review

This Article first addresses, by way of example, questions of mens rea, or required mental states, through the basic purposes and relevant assumptions underlying general tort and criminal law. Whichever approach the law adopts, with or without negotiation, toward corporate aiding and abetting liability in human-rights-oriented torts cases should at least be generally compatible with these basic purposes and assumptions. Next, this Article addresses several possible approaches to the mens rea issues before adopting a model of negotiation or bargaining bounded by general moral constraints.

Secondly, this Article discusses a number of issues associated with the Alien Tort Statute ATS …


Making The Grade: School-Based Telemedicine And Parental Consent, Emily G. Narum Oct 2016

Making The Grade: School-Based Telemedicine And Parental Consent, Emily G. Narum

San Diego Law Review

This Comment advocates for a uniform state-by-state regulation, requiring schools to obtain parental consent immediately before any telemedicine service is provided to their children at school. Alternatively, the constitutional issues could be eliminated if telemedicine consent forms enumerate a finite and limited list of what medical services may be provided. These reforms will ensure not only that parents’ and children’s constitutional rights are protected, but also that schools and doctors provide the most informed health care services. Part II describes a background of school-based health, as well as the benefits and risks of offering telemedicine in schools. Part III explains …


Three’S A Crowd Or A Charm? Third Party Liability For Participating In Breaches Of Fiduciary Duty, Alison Gurr Oct 2016

Three’S A Crowd Or A Charm? Third Party Liability For Participating In Breaches Of Fiduciary Duty, Alison Gurr

San Diego Law Review

Part I of this Article will consider the threshold question noted above: Should third parties be held liable for participating in breaches of fiduciary duty? After establishing that there are justifications for this liability, Part II will explore whether there are other existing causes of action that might address similar concerns and therefore render the introduction of TPLFD unnecessary. Part III will consider how TPLFD should be recognized in states that have not yet adopted this cause of action. It will also argue that the courts, and not the legislature, should introduce TPLFD. Finally, Part IV will set out some …


Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, And Other Difficulties Of “Affirmative Consent” In The Ali’S Draft Sexual Assault Provisions, Kevin Cole Oct 2016

Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, And Other Difficulties Of “Affirmative Consent” In The Ali’S Draft Sexual Assault Provisions, Kevin Cole

San Diego Law Review

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy …


There’S No Place Like (Your) Home: Evaluating Existing Models And Proposing Solutions For Room-Sharing Regulation, Lara Major Jul 2016

There’S No Place Like (Your) Home: Evaluating Existing Models And Proposing Solutions For Room-Sharing Regulation, Lara Major

San Diego Law Review

As urban housing grows increasingly unaffordable, city-dwelling millennials are forced to consider novel ways to pay the rent. The intersection of costs outpacing a reasonable share of income, demand for short-term housing, and ubiquitous personal technology has spawned an entire “room-sharing” industry, dominated by start-up Airbnb. Facilitated by Airbnb’s smartphone application, millennials open up their condominiums, houses, and apartments to complete strangers for short-term use. But, with the growth of the room-sharing economy come concerns for its participants, such as apportioning liability and, the focus of this Comment, determining how room-sharing fits within existing regulatory schemes.


Masking Your Rights: Facemask Requirements Under Mandatory Influenza-Vaccination Policies Violate Privacy Rights Of Health Care Workers, Janet S. Kim Jul 2016

Masking Your Rights: Facemask Requirements Under Mandatory Influenza-Vaccination Policies Violate Privacy Rights Of Health Care Workers, Janet S. Kim

San Diego Law Review

Hospitals should abandon the facemask requirements in their mandatory influenza-vaccination programs because the facemasks can infringe on the privacy rights of health care workers, and hospitals can still achieve their vaccination goals through less restrictive practices. Part II introduces the recent rise of mandatory influenza-vaccination policies for health care workers, how hospitals exempt certain employees, and the consequences for those exempted. Part III discusses the legal implications of requiring exempted employees to wear facemasks and other identifying material under federal and state privacy law. Part IV recommends that health care employers abandon facemask requirements in their mandatory-vaccination programs in order …


Funding Terrorism: The Problem Of Ransom Payments, Yvonne M. Dutton Jul 2016

Funding Terrorism: The Problem Of Ransom Payments, Yvonne M. Dutton

San Diego Law Review

This Article draws on the literature about norm influence to suggest an answer: adopting these measures has the potential to impact behavior in a meaningful and constructive way in the future. A norm refers to the appropriate or desired behavior within a community as to a particular issue. A new norm spreads with the help of agents, typically referred to as norm entrepreneurs, who use persuasion to convince a critical mass of actors in the international community to adopt the preferred behavior. In other words, over time, norms can become so pervasive that they change behavior.

In fact, this Article …


Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford C. Mank Jul 2016

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford C. Mank

San Diego Law Review

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …


Net Legal Power, Steven Ferrey Jul 2016

Net Legal Power, Steven Ferrey

San Diego Law Review

Law will determine the future of the planet. Net metering, the regulatory mechanism employed by 88% of U.S. states to promote renewable power and to reduce carbon emissions from electricity production, is now legally challenged. The legality of recent carbon control policies is expected to head to the Supreme Court.

The law governing electric power, and electric power itself, is distinct from everything else. The physics of electricity do not align with the law. Electric power, alone among all forms of energy, is the only energy which cannot be stored: The supply of power produced must instantaneously second-by-second exactly match …


Motions 2016 Volume 52 Number 7, University Of San Diego School Of Law Student Bar Association Apr 2016

Motions 2016 Volume 52 Number 7, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.


The California S.T.E.P. Act: Prosecuting Fraternities As Criminal Street Gangs, Courtney Lee Spears Apr 2016

The California S.T.E.P. Act: Prosecuting Fraternities As Criminal Street Gangs, Courtney Lee Spears

Undergraduate Honors Theses

This thesis project examines the similarities in structure, initiation processes, af liations, and motivations for joining both criminal street gangs and fraternities. These similarities serve as the foundation for the central idea of the thesis: using California’s street gang legislation, mainly the S.T.E.P. Act, to more severely prosecute fraternities for their crimes. My application of the legislation is supported through both comprehensive gang data, as well as case studies of fraternity crimes, as comprehensive data for this group does not exist. My research has important implications, as recent legislation serves to protect fraternity offenders from facing punishment for their crimes, …


Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole Mar 2016

Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole

Faculty Scholarship

This short piece examines changes from prior drafts in the most recent draft (Preliminary Draft No. 6) of the American Law Institute's project on sexual assault law.


The Law Of The Platform, Orly Lobel Mar 2016

The Law Of The Platform, Orly Lobel

Faculty Scholarship

New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. …


The Good, The Bad, The Ugly: Human Rights Violators In Comparative Perspective, Austin Choi-Fitzpatrick Mar 2016

The Good, The Bad, The Ugly: Human Rights Violators In Comparative Perspective, Austin Choi-Fitzpatrick

School of Peace Studies: Faculty Scholarship

A large and growing wave of scholarship has focused attention on a variety of contemporary forms of slavery. Early attention went to victims of sexual exploitation, though this is starting to slowly change with a growing body of work on labor exploitation. Previous studies focused exclusively on international trafficking and on the Global South whereas newer studies emphasize domestic trafficking and exploitation in the Global North. This article, and the special issue it introduces, suggests that it is high time scholars and advocates broaden their scope to more clearly focus on perpetrators and on the emancipation process. Perpetrators are too …


Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman Mar 2016

Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman

Faculty Scholarship

Numerous corporations, ranging from Airbnb to Tesla, and from DraftKings to Uber, have built huge businesses that reside in legal gray areas. Instead of taking the law as a given, these companies have become agents of legal change, focusing major parts of their business plans on changing the law. To achieve their political goals, these companies employ conventional lobbying techniques, but also more innovative tactics. In particular, some attempt to enter markets quickly, then grow too big to ban before regulators can respond. If regulators do take aim at them, they respond by mobilizing their users for political support. This …


Motions 2016 Volume 52 Number 5, University Of San Diego School Of Law Student Bar Association Mar 2016

Motions 2016 Volume 52 Number 5, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.


Why The Ministerial Exception Is Consistent With Smith—And Why It Makes Sense, William A. Galston Mar 2016

Why The Ministerial Exception Is Consistent With Smith—And Why It Makes Sense, William A. Galston

San Diego Law Review

This conference puts on the table two linked questions: Can Hosanna-Tabor be reconciled with Employment Division v. Smith and, if so, on what basis? Let me say straightway that I have at most an amateur’s understanding of constitutional law and jurisprudence. I bring to our questions some intuitions about the best framework for thinking about them, and whatever light my home discipline of political theory can shed on them. I have also benefitted enormously from Christopher Lund’s splendid law review article on the topic of this conference.


Rfra, State Rfras, And Religious Minorities, Christopher C. Lund Mar 2016

Rfra, State Rfras, And Religious Minorities, Christopher C. Lund

San Diego Law Review

Now fully a generation ago, the Supreme Court decided Employment Division v. Smith, which held that religious believers generally have no right to exemptions from neutral and generally applicable laws. But in the twenty-five years since Smith, the situation has grown more complex. Shortly after Smith, Congress passed the Religious Freedom Restoration Act (RFRA) and later the Religious Land Use and Institutionalized Persons Act (RLUIPA). And many states followed suit, either adopting state Religious Freedom Restoration Acts (state RFRAs) or construing generously the religious-freedom provisions of their state constitutions. As a result, the compelling-interest test discarded by Smith now again …


The Opposite Of Anarchy And The Transmission Of Faith: The Freedom To Teach After Smith, Hosanna-Tabor, Obergefell, And The Ascendancy Of Sexual Expressionism, Helen M. Alvaré Mar 2016

The Opposite Of Anarchy And The Transmission Of Faith: The Freedom To Teach After Smith, Hosanna-Tabor, Obergefell, And The Ascendancy Of Sexual Expressionism, Helen M. Alvaré

San Diego Law Review

There are several avenues available for protecting religious schools’ freedom but none involving rote application of the summary holdings of Smith or Hosanna-Tabor. This shouldn’t surprise; little is simple where the religion clauses are concerned. Nevertheless, to provide free exercise and nonestablishment “on the ground” and to allow core tenets of Judeo-Christian traditions a genuine, not just theoretical, chance of reaching the next generation, the Supreme Court needs to find a way within the labyrinth of its current First Amendment jurisprudence to allow religious schools and parents the freedom to teach.

This Article will treat this question as follows. Part …