The San Diego law review最新文献

{"title":"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","authors":"Chad G. Marzen, W. Woodyard","doi":"10.2139/SSRN.2655828","DOIUrl":"https://doi.org/10.2139/SSRN.2655828","url":null,"abstract":"In the past decade, policymakers from various perspectives have discussed and debated proposals to reform America’s immigration system. This article discusses not only the history of the Catholic legal and intellectual tradition’s contribution to social teaching on the issue of immigration, but emphasizes the development of two strands of Catholic thought: the right to immigrate, and the right to regulate borders. Applying the Catholic legal and intellectual tradition, this article provides a proposal for immigration reform that incorporates key tenets of Catholic social thought.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"53 1","pages":"781"},"PeriodicalIF":0.0,"publicationDate":"2015-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2655828","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68241058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Defamation Injunction Meets the Prior Restraint Doctrine","authors":"Doug Rendleman","doi":"10.2139/ssrn.2404560","DOIUrl":"https://doi.org/10.2139/ssrn.2404560","url":null,"abstract":"In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill. A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s. The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island VillageInn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application. The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"56 1","pages":"615"},"PeriodicalIF":0.0,"publicationDate":"2014-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drugged Out: How Cognitive Bias Hurts Drug Innovation","authors":"Cynthia M. Ho","doi":"10.2139/SSRN.2318820","DOIUrl":"https://doi.org/10.2139/SSRN.2318820","url":null,"abstract":"In recent years, legal scholars have begun to identify and evaluate how the cognitive biases held by all individuals impact law and policy. Thus far, however, scholars have not recognized the existence or impact of biases that impact pharmaceutical innovation and patent policy. This Article fills that gap at a key juncture. Currently, the industry mostly produces drugs that do not provide significant clinical benefits over existing drugs. Further, even the number of new drugs produced every year is modest compared with exponentially increasing pharmaceutical expenditures. This Article shows that there are significant cognitive biases that play a key, but thus far unrecognized, role in promoting modest innovation. In particular, there are views of pharmaceutical innovation and patent policy that have been broadly accepted amongst not only the industry, but by policy makers and some scholars that are not soundly supported. These views, referred to as “schemas,” are perpetuated because of well-established cognitive biases explained in the Article. Recognizing these schemas is critical because scholars and policy makers are vulnerable to accept these mistaken assumptions as fact, and create and recommend misguided policies. Although these schemas revealed here are broadly consistent with cognitive science studies, this is the first Article to not only document schemas in the realm of pharmaceutical innovation, but also show how they are perpetuated despite contrary evidence. After revealing these schemas, this Article proposes concrete steps to counteract them, including possible steps to modify patent policy in light of this new understanding.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"51 1","pages":"419"},"PeriodicalIF":0.0,"publicationDate":"2013-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68097547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability","authors":"E. Ursin","doi":"10.2139/SSRN.2409210","DOIUrl":"https://doi.org/10.2139/SSRN.2409210","url":null,"abstract":"Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner. Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"50 1","pages":"537"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Lockean Theory of Intellectual Property Revisited","authors":"A. Moore","doi":"10.2139/SSRN.2099073","DOIUrl":"https://doi.org/10.2139/SSRN.2099073","url":null,"abstract":"Part I of this article will present the main outlines of a Lockean theory of intellectual property. Part II will take up several specific objections that have been leveled against my preferred view. Finally, Part III will consider several general objections to intellectual property.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"49 1","pages":"1069"},"PeriodicalIF":0.0,"publicationDate":"2012-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2099073","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67909709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Level Up: Employing the Commerce Clause to Federalize the Sale of Goods","authors":"Jennifer Camero","doi":"10.2139/SSRN.2027482","DOIUrl":"https://doi.org/10.2139/SSRN.2027482","url":null,"abstract":"The Commerce Clause has received much attention over the last year given the debate over the constitutionality of the Affordable Care Act. Although the Supreme Court upheld the Act, the Supreme Court did hold that Congress overstepped its powers under the Commerce Clause by mandating national health care. Despite this recent ruling reigning in Congressional power, the Commerce Clause still is an effective means for Congress to enact certain types of federal legislation involving interstate commerce. One such legislation, as proposed in this article, is a federal sales act. Currently, sales law is state legislation modeled from Article 2 of the Uniform Commercial Code. Article 2 is becoming increasingly ineffectual, biased and outdated, thus impeding economic development, escalating the complexity of commercial transactions and increasing disputes. Before these defects overly hinder commercial transactions, they must be fixed. Unfortunately, the current uniform code amendment process has thwarted attempts to revise Article 2 due to its cumbersome and consensus-oriented approach. Given the inability to revise Article 2 through the current system, an entirely new approach is needed to the law of sales - the enactment of a federal sales act to replace Article 2. Such an act would ameliorate Article 2’s deficiencies and falls within Congressional power under both the Commerce Clause and traditional notions of federalism.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"50 1","pages":"89"},"PeriodicalIF":0.0,"publicationDate":"2012-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67864956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Line-Drawing and the Broader Culture: The Case of Politics and Entertainment","authors":"R. Wright","doi":"10.2139/SSRN.2019965","DOIUrl":"https://doi.org/10.2139/SSRN.2019965","url":null,"abstract":"This article puts in a broader legal and cultural context and then critically evaluates Justice Scalia’s and other legal figures' remarkably broad and systematic reluctance to distinguish, for Free Speech purposes, in appropriate cases, between politics and entertainment, or more precisely, political speech and entertainment speech.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"49 1","pages":"341"},"PeriodicalIF":0.0,"publicationDate":"2012-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67858470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reasonable Persons, Reasonable Circumstances","authors":"Christopher R. Jackson","doi":"10.2139/SSRN.2015925","DOIUrl":"https://doi.org/10.2139/SSRN.2015925","url":null,"abstract":"The reasonable person test is a common thread that runs through the fabric of Anglo-American law. It has become such a common trope in legal discourse that it scarcely receives much attention in its own right. In this article, I analyze one facet of the test that, I believe, will yield significant benefits in understanding the subject as a whole: how we ought to go about determining which circumstances are relevant to the reasonable person inquiry. I will argue that the circumstances that ought to be part of the test will vary based on the substantive area of law: the “reasonable person test” is in reality a series of tests that, perhaps aside from a common core, are applied separately to different areas of law. Which test is used will vary depending on whether the case is criminal, or an Establishment Clause claim, or another matter entirely; and it will vary further depending on what theory one believes animates a given field of law. By unpacking some of the details of the reasonable person test in these different fields, we will arrive at a better understanding of how the test works in practice.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"50 1","pages":"651"},"PeriodicalIF":0.0,"publicationDate":"2012-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2015925","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67854850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparing Single Sex and Reformed Coeducation: A Constitutional Analysis","authors":"N. C. Cantalupo","doi":"10.2139/SSRN.1940469","DOIUrl":"https://doi.org/10.2139/SSRN.1940469","url":null,"abstract":"One of the most enduring educational debates of the past three decades has dealt with the legality and advisability of sex-segregated education. This debate can often look confusing, given a large number of debaters and the diversity of their perspectives and agendas. More than this diversity, however, the debate is confusing because the debate has been structured as a contest between the “innovation” of sex-segregated education and status quo coeducation. Missing from the debate is a comparison between reformed coeducation and a single-sex alternative; a comparison that is markedly more useful in determining what ought to be done about the problems animating the debate, particularly problems of gender equity in education and society. Also missing from the debate are comprehensive constitutional analyses applying the U.S. Supreme Court’s equal protection “intermediate scruitiny” test to sex-segregated education, a test characterized by much debate as to its application and consistency. These two gaps ultimately come together because the comparison between reformed coeducation and sex-segregated education is also the proper one for analyzing the constitutionality of single-sex education. Therefore, this Article seeks both to address the lack of comprehensive analyses regarding the constitutionality of sex-segregated K-12 public education and to untangle the underlying debate regarding the Court’s application of the intermediate scrutiny test. In undertaking this analysis, it posits a new way to look at the Court’s jurisprudence regarding legislation that facially classifies based on sex, one that suggests that the Court’s jurisprudence may be more consistent and predictable than most commentators have suggested up to this point. It then applies this jurisprudence to sex-segregated, K-12 public education. In doing so, it pays particular attention to the reformed coeducation and sex-segregated education comparison as the proper one for analyzing the constitutionality of single-sex education. It concludes that, when assessing whether a sex classification substantially advances an important government objective, under the Supreme Court’s thirty-year-plus line of cases, it is extremely useful and possibly necessary to compare the sex classification with sex-neutral alternatives for advancing that objective.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"49 1","pages":"725"},"PeriodicalIF":0.0,"publicationDate":"2011-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1940469","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67803238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitutional Jurisprudence of Justice Kennedy on Speech","authors":"R. Kelso, C. Kelso","doi":"10.2139/ssrn.1930998","DOIUrl":"https://doi.org/10.2139/ssrn.1930998","url":null,"abstract":"In this article, we describe how the concept of constitutionally protected liberty has been developed and applied in Justice Kennedy’s opinions. As we discuss, Justice Kennedy’s vision of liberty embodied in the Constitution seems to derive from an understanding of 18th-century Enlightenment philosophy, based on writers such as John Locke and Adam Smith, as developed in the 19th century by writers such as John Stuart Mill. In pursuit of this understanding, Part II of this article discusses the Enlightenment concept of liberty. Part III then shows how that doctrine is reflected in the reasoning of opinions written by Justice Kennedy, with specific reference to cases involving freedom of speech, individual autonomy, individual liberty versus government liberty, and international views on liberty. Part IV addresses other aspects of a natural law theory of interpretation – text, context, history, legislative and executive practice, precedent, and prudential considerations – that limit full elaboration of this concept of liberty in specific cases. Part V provides a brief conclusion.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"49 1","pages":"693"},"PeriodicalIF":0.0,"publicationDate":"2010-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.1930998","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67798950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}