Law Commons^™

Another Shot At Rectifying The District Of Columbia V. Heller Ambiguities: The Constitutional Right To Arms, The Nonconstitutional Right To Arms, And The Commerce Clause, Noah Gaarder-Feingold

San Diego Law Review

In an article for The New Yorker titled Active Shooter, David Sedaris quipped that, in preparing for the potential that a psychopath might break into his home, he would just as soon have a back door as a gun. Sedaris wrote the article after visiting a shooting range in North Carolina. Before, during, and after the writing of the article, Sedaris lived in the United Kingdom and noted that in the United Kingdom, it is nearly impossible to acquire a handgun let alone fire a handgun for sport.

Conversely, in the United States, a citizen has a right to a …

Reply To “How Foot Voting Enhances Political Freedom”, James Allan

San Diego Law Review

My job is to comment briefly on Ilya Somin’s Article, How Foot Voting Enhances Political Freedom. Of necessity, then, I will be selective. The thrust of the Article—which appears to be an excerpt from an upcoming book—is that “ballot box voting” compares unfavorably to “foot voting.” The terms are Somin’s, not mine. The former phrase refers to what we would normally just call “voting.” The latter refers to what would normally fall under the aegis of migration, immigration, emigration, or even moving to another jurisdiction. And when we compare those two alternatives—voting in a democratic election and picking up one’s …

How Foot Voting Enhances Political Freedom, Ilya Somin

San Diego Law Review

To the extent we value political freedom in any significant sense, we should also assign a high value to foot voting. Freedom of choice through foot voting, and the freedom of movement that make it possible, cannot be absolute principles that always trump other considerations. But there should be at least a substantial presumption in their favor.

My analysis also emphasizes the fundamental similarity between three different types of foot voting that are usually considered to be very different from each other: interjurisdictional foot voting in federal systems, foot voting through international migration, and foot voting in the private sector. …

Points Of Crisis Or, Is It All Over?, Maimon Schwarzschild

San Diego Law Review

Various European democracies, and others with at least the beginnings of liberal institutions, collapsed—and yielded to fanaticism and tyranny—in the twentieth century in the wake of defeat in war, economic depression, hyperinflation, and in the face of violence from within and from without. Perhaps it is too Spenglerian to suggest that the present sources of democratic crisis—such as, no doubt among others, the growth of bureaucratic power, the erosion of free expression especially in the institutions that should foster it, and the growth of ideological tribalism and political odium—might actually bring down liberal institutions in America, or similarly elsewhere. But …

The Unreasonableness Of Catholic Integralism, Micah Schwartzman, Jocelyn Wilson

San Diego Law Review

In this symposium contribution, we argue that Catholic integralism is unreasonable. Our conception of reasonableness is defined in terms of substantive moral and epistemic commitments to respecting the freedom and equality of citizens who hold a wide—but not unlimited—range of religious, ethical, and philosophical conceptions of the good. In arguing that Catholic integralism conflicts with this understanding of reasonableness, it might seem that we are begging the question against integralists. But our purpose here is not to engage integralists on their own terms. So far, the debate about integralism has been conducted mostly among Catholics and Christian conservatives. Our critique …

What, If Anything, Is Wrong With Gerrymandering?, Niko Kolodny

San Diego Law Review

…While some of the concern about gerrymandering is concern about the results that it leads to, some of the concern is that it is itself somehow objectionable—that it is undemocratic or unfair or foul play or what have you. If there is such an objection to incumbent protection gerrymandering, my best guess is that it violates conditions of proper representation or that it is corrupt. If there is such an objection to racial gerrymandering, my best guess is that it is wrongfully discriminatory. And if there is such an objection to partisan gerrymandering, my best guess is that it exploits …

What Might Democratic Self-Governance In A Complex Social World Look Like?, Gerald Gaus

San Diego Law Review

The crisis facing democratic self-government is first and foremost a crisis of self-governance, not of democracy.

Section II reviews the nature of complex systems and why our contemporary social and economic order qualifies as technically complexindeed, increasingly so—and why explicit overall, directed reform of our social world is hopeless. But hope is not easily abandoned: Section III critically looks at two continuing sources of hope. Section IV then turns to a critical issue: If not by central direction, how do such complex systems achieve orderliness and functionality? Section V turns to the heart of the matter: is democratic self-governance viable …

Reply To “Democracy, Participation, And Information: Complementarity Between Political And Economic Institutions”, Christopher Wonnell

San Diego Law Review

As I see it, Thomas Christiano’s Article on democracy and complementarity has two purposes. One is to defend democracy against the charge that it cannot work because of the rational ignorance of the citizenry. The other is to propose a way of making democracy work better by changing the economic system in such a way as to give workers access to more of the information they need to become informed voters. Discussion of opinion will take place in the following pages.

Democracy, Participation, And Information: Complementarity Between Political And Economic Institutions, Thomas Christiano

San Diego Law Review

In this Article, I will first lay out what I describe as the crude Downsian approach to political democracy and the skepticism about democracy that this has generated. Then, I will lay out some basic problems with this approach and show how the skepticism is not warranted. I will then embark on the task of developing an alternative Downsian approach to political democracy that I think is truer to Downs’s view and that is more sophisticated and interesting. This will include a brief sketch of motivation, and an account of the economics of information in politics. I will then try …

Reply—And Gentle Dissent—To Michael Blake’S “Democracy And Deference”, Maimon Schwarzschild

San Diego Law Review

Michael Blake’s interesting and obviously heartfelt Article expresses the apprehension that many, if not most, of us feel that democratic life and institutions are under stress, even in danger of failing; and Blake wants to be fair, or at least to gesture at fairness, in accounting for the problems and in his prescriptions for what to do about it. Yet, his suggestions are deeply at odds, I believe, with any viable democratic future, and—a little sadly —they illustrate how wide the gap is now, or the gulf, between the political cultures or tribes within our very divided society. One thing …

Democracy And Deference: Or, Why Democracy Needs People Who Know How To Shut Up And Listen, Michael Blake

San Diego Law Review

The charge for this conference asked us to consider the future of liberal democracy given the challenges it presently faces. Two challenges in particular give me pause:

First, the issues that are most in need of governance are now happening at the transnational level. We face the possibility of an altered climate due to increased carbon emissions; increased political turbulence due to increased migration flows, including a resurgence of refugees and, of course, increased resistance to refugee admissions; and increasingly complex international processes for both the production of goods and the movement of capital. None of these issues can be …

Reconsidering Nondemocratic Political Regimes, Richard Arneson

San Diego Law Review

Asking what the best feasible political governance system for a country at a time is admits of different interpretations, depending on the gloss we are placing on “feasible.” We might be thinking of the best feasible system as the best system that could be installed, in present circumstances, if a set of people sufficient to bring about the shift could be convinced to team up to effect it. A more restricted feasibility question would be posed if we asked instead, taking for granted the actual beliefs and attitudes and their entrenchment in the present members of society now, what is …

A Churchillian And Benthamite Defense Of Democracy, James Allan

San Diego Law Review

In this Article, I am going to defend democracy against those Cassandras who are pessimistic, even in a comparative sense, about its capabilities and worth. I expect that many of those pessimists about democracy will think me something of a Pollyanna, all too inclined to see the world through rose-colored spectacles that transmogrify what the Cassandras perceive as the three-quarters empty glass into what I claim is a three-quarters full one. So, let me be blunt right from the start. Mine will be a least-bad or Churchillian defense of democracy, one that readily concedes that democratic decision-making has its flaws …

V.21-1 2019 Masthead

San Diego International Law Journal

No abstract provided.

Is The Law Of War Changing In The Twenty-First Century?, Waseem Ahmad Qureshi

San Diego International Law Journal

The main purpose of drafting the law of war was to maintain peace and security around the world. That is why the current legal framework prohibits the use of force, except in accordance with the right to self-defence or with United Nations Security Council (UNSC) authorization. Yet, this century has been in a perpetual state of war. In the past, there have been certain deviations from this proscription on the use of force through the introduction of notions like ‘pre-emptive self-defence’ and the ‘responsibility to protect’ (R2P), according to which states could use unilateral force against other states without UNSC …

The Efficacy, Limitations, And Continued Need For Authorizations For Use Of Military Force, Waseem Ahmad Qureshi

San Diego International Law Journal

In the fight against ISIS, the U.S. has conducted airstrikes, deployed forces, supported rebellions, trained nonstate actors, and used military funds in Iraq and Syria. This fight has raised questions regarding the validity of U.S. authority to use force against ISIS. Imperialists, comprising the U.S. president and a few congressmen, seek to fight ISIS and believe that the authority to use force against ISIS comes from the independent presidential executive powers and Authorizations for Use of Military Force (AUMFs) in 2001 and 2002. Contrary to their legal conviction and justifications, imperialists are seeking a new AUMF from Congress to be …

Living Links Connecting The United Nations Sustainable Development Goals: Small-Scale Farmers And Agricultural Biodiversity, Susan H. Bragdon

San Diego International Law Journal

The 17 Sustainable Development Goals (SDGs) and Agenda 2030 adopted by the global community in September 2015 are applicable to all countries with the commitment “that no one is left behind.” As an agenda for “people, planet, prosperity, peace and partnership”, Agenda 2030 provides a vision for people and planet-centered, human rights-based, and gender-sensitive sustainable development. It promises “more peaceful and inclusive societies” which are free from fear and violence.

Small scale farmers and agricultural biodiversity are critical to the achievement of aspects of most of the SDGs. In addition to being essential for the resilience and stability of agricultural …

Fcpa Actions In China And China’S Anti-Bribery Law, Yu Chen

San Diego International Law Journal

In recent decades, the United States Department of Justice (DOJ) has greatly improved its enforcement of the U.S. Foreign Corrupt Practices Act (FCPA). Some of these FCPA enforcement cases involve China. Given China’s prominence as a center of global business, this trend is likely to increase in the foreseeable future.

Section I of this Article briefly reviews the provisions of the FCPA, and recent FCPA enforcement in China. Section II discusses China’s anti- bribery law regime, anti-bribery provisions and agencies enforcing bribery and corruption. Section III focuses on an analysis of FCPA cases involving China, in addition to describing the …

Roman Law And Global Constitutionalism, Rafael Domingo

San Diego International Law Journal

The parallel between contemporary issues and Roman history often fascinates and illuminates. In this Article, I argue how Roman law can serve today as an inspiration toward global constitutionalism given it was one of the several sources of inspiration for the American founders. Looking to Roman law helps reduce certain prejudices derived from the current privileging of the sovereign state and the positivist paradigm as the only genuine and possible models for international law. These prejudices constitute an actual hindrance to the right development of global constitutionalism. Global constitutionalism inherently moves beyond sovereignty, nationalism, and positivism. Roman law enables constitutionalists …

Fourth- And Fifth-Generation Warfare: Technology And Perceptions, Waseem Ahmad Qureshi

San Diego International Law Journal

The composition of warfare is changing. There is an increasing transformation in the traditional aspects of waging a war: conventional techniques of warfare are in decline and newer tactics and tools of warfare, such as information warfare, asymmetric warfare, media propaganda, and hybrid warfare, are filling the gap, blurring the lines between combatant and noncombatant, and between wartime and peacetime. The basic framework of modern warfare was elaborated by Carl von Clausewitz in his magnus opus On War. He defined modern warfare between states as “a duel on larger scale,” and explained its purpose as “a continuation of politics by …

Adapting The Iss Code Of Conduct To Form The Foundation Of Astrolaw, Michelle L.D. Hanlon

San Diego International Law Journal

Three decades ago, Dr. J. Henry Glazer, onetime Chief Counsel for NASA Ames, proposed the establishment of a body of astrolaw. “The direct subjects of Space Law are sovereign nations” he observed. The four widely ratified space treaties contain principles and guidelines designed to govern the activities of State. Conversely, the direct subjects of astrolaw would be natural and legal persons in space. In Dr. Glazer’s view, “astrolaw focuses not upon space as a legal regime, but upon space as a place.” Our evolution into a spacefaring species, with single and then multiple human communities off-Earth, is a human necessity. …

U.S. Tax Policy In Light Of Globalization And Growing Inequality, Alanna D'Alessandro

San Diego International Law Journal

The Tax Cuts and Jobs Act significantly reformed the system of taxation in the United States by enacting permanent and temporary provisions to the Internal Revenue Code. These provisions encompass changes affecting U.S. individuals and entities, both domestically and internationally. Claiming that the change would “pay for itself,” the Tax Cuts and Jobs Act intends to stimulate the economy. The large tax cuts may have created short-term economic growth; however predictions suggest that in the long-run, the increased spending and the decline in tax revenue will significantly raise the U.S. budget deficit.

Regardless of Congressional intent, the Tax Cuts and …

Pay Her More! How Sex And Motherhood Play A Role In The Unequal Pay Of Women On The World Stage, Raquel S. Zilbeman

San Diego International Law Journal

“[O]vert pay discrimination between women and men” is what typically comes to mind when one thinks about the gender wage gap. While women often ask for “equal pay for equal work,” gender discrimination is only responsible for a small amount of the pay gap. “The gender wage gap is also about choice and opportunity. . . . [It is] rooted in [global] social norms about women[,] family [and motherhood which constantly change and evolve—making it] much harder to solve.” It is grounded in the way our society has evolved over the last one hundred and fifty years, during which more …

The Regulatory Trajectory Of Synthetic Securitization: A Breakdown Of International Regulatory Environments, Nicolas M. Dillavou

San Diego International Law Journal

The harmful effects on global financial stability that accompanied the 2007-2008 financial crisis (the “crisis”) were largely intensified by loose regulatory practices in the United States’ (U.S.) secondary mortgage market. Accordingly, the harm suffered on a global level warrants a comparative perspective on international securities regulation. This Article will examine several securitization methods in Europe and the U.S. and derive prospective solutions from these existing approaches that have the potential to address undue risks associated with asset-backed securities today.

This Article will initially discuss the history and causes of the subprime mortgage crisis and then discuss the particular difficulties with …

Don’T Google It: The European Union’S Antitrust Parade (“Enforcement”) Against America’S Tech Giants, Mariah Witt

San Diego International Law Journal

This Article details several case studies, each exemplifying the EU’s pro- competition practices versus the American monopoly-like corporations of Google, Microsoft, and Amazon. The EU claims that each of these companies have abused their dominant position in their respective markets. Many companies (including those not listed in this comment) that have faced the EU’s antitrust wrath are merely the successful giants of their field, who should be enjoying their success, not sitting in fear of success’s implications in the global arena. This comment will conclude with a warning to future American corporations on the path to monopoly-like power and status …

Don’T Tip The Melting Pot: A Case Study Of The U.S., U.K., And Denmark’S Use Of Anti-Immigration Laws To Shift Blame For Real Social And Economic Problems To Immigrants And The Economic And Legal Impacts Of Their Use, Nicole Logan

San Diego International Law Journal

This Article consists of four parts that lay the framework and analyze extreme immigration legislation and anti-immigration sentiments in the U.S., U.K., and Denmark. Part I focuses on the history of immigration and anti-immigration sentiments in the three countries. Part II discusses governing laws in the three countries that have received the most attention because of their extreme impact on immigrants. Part III analyzes these laws, focusing on their legal ramifications, discriminatory effects on immigrants, and economic harm. Finally, Part IV explains why these laws reflect an extreme approach to immigration and raise serious legal questions if they are not …

V.56-4, 2019 Masthead

San Diego Law Review

No abstract provided.

To Exempt Or Not Exempt: Religion, Nonreligion, And The Contraceptive Mandate, Sarah Kim

San Diego Law Review

In an attempt to help mitigate the difficulties courts are experiencing with the Contraceptive Mandate, this Comment proposes a uniform factors test that courts can use in their equal protection analysis to define a deeply and sincerely held religious belief and determine whether religious and nonreligious organizations are similarly situated. To demonstrate the necessity of a uniform factor test, this Comment starts by providing the history of the Affordable Care Act and the Contraceptive Mandate and exploring the religious exemptions created in response to the Contraceptive Mandate in Part II. Part III elaborates the current circuit split on the issue …

Keynote Address At The Institute For Civil Civic Engagement’S Eighth Annual Conference On Restoring Civility To Civic Dialogue: Restoring Respect, Tani G. Cantil-Sakauye, Carl Luna

San Diego Law Review

Keynote Address at the Institute for Civil Civic Engagement’s Eighth Annual Conference on Restoring Civility to Civic Dialogue: Restoring Respect

Pregnant And Scared: How Nifla V. Becerra Avoids Protecting Women’S Reproductive Autonomy, Savannah R. Montanez

San Diego Law Review

This Note analyzes the Court’s determination that the Licensed Notice did not fit into either exception. Part II of this Note provides a brief overview of CPCs and how the FACT Act was designed to curb CPCs’ interference with women’s reproductive autonomy. Part III discusses the litigation between NIFLA, the CPCs, and California, culminating in a controversial 5–4 decision in the Supreme Court. Next, Part IV argues that even if the Court wanted to limit the circumstances wherein professional speech received diminished scrutiny, it could have fit the Licensed Notice into its newly-delineated exceptions. This Note ultimately questions why the …