The San Diego law review最新文献

{"title":"Responsibility in Capital Sentencing","authors":"Steven Semeraro","doi":"10.2139/SSRN.480883","DOIUrl":"https://doi.org/10.2139/SSRN.480883","url":null,"abstract":"The recent evidence of innocents on death row has led to a call to revisit the legal doctrine governing capital punishment. But abandoning that doctrine would be the wrong response. It fosters individual responsibility in capital sentencing by placing the participants in the process - from the legislator to the prosecutor, trial judge, and jury and ultimately to the appellate judge - in an environment in which their sense of responsibility is broadened compared to earlier capital punishment systems. By strengthening the sense of responsibility of those inside the process, we heighten our trust in their decision. Drawing on psychological research, empirical data from juror interviews, and the social theory of Vaclav Havel, this article suggests that individual responsibility - rather than the goals advanced by the Court itself (consistency and individualization) - is the key to a moral capital sentencing process. Although modern doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. This article proposes two concrete ways to improve existing doctrine: (1) require the trial judge to explain the sentencer's role to the jury in the narrative voice, a way of speaking associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences, bringing the responsibility of appellate judges in capital cases into line with the responsibility they bear in other constitutional cases.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2003-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.480883","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746721","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 Grounds and Extent of Legal Responsibility","authors":"R. W. Wright","doi":"10.2139/SSRN.438640","DOIUrl":"https://doi.org/10.2139/SSRN.438640","url":null,"abstract":"This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the \"no worse off\" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant's tortious conduct and the plaintiff's injury, (ii) was a necessary (\"but for\") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the \"risk playout\" limitation). None of the three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk (\"harm-risked\") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. However, as this article demonstrates, the results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the longstanding efforts of the academic drafters of the Restatements to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm. These three limitations are neither exclusive nor absolute. Some of them do not apply or apply less broadly to some intentional torts and some strict liability actions. Moreover, there are other limitations on the extent of legal responsibility, such as the de-minimis-contribution limitation, as well as limitations on legal responsibility for certain types of losses - such as pure emotional distress, pure economic loss, and wrongful birth - that are more appropriately handled as categorical limitations on the scope of a person's duty rather than as limitations on the extent of legal responsibility for tortiously caused harm.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"40 1","pages":"1425"},"PeriodicalIF":0.0,"publicationDate":"2003-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68785395","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 Jurisdiction of Justice: Two Conceptions of Political Morality","authors":"L. Alexander","doi":"10.2139/SSRN.446020","DOIUrl":"https://doi.org/10.2139/SSRN.446020","url":null,"abstract":"My topic in this essay is a major fault line within normative theory. More precisely, it is a major fault line within that part of a normative theory that deals with the content of our moral obligations to others. When I refer to moral obligations here, I am referring to those acts that morality demands of us such that it permits force or its threat to be employed to secure those acts. Moral obligations as I use the term are thus candidates for legal enforcement. I argue that much of what is debated within liberal political/moral theory can be usefully illuminated by dividing liberal conceptions of justice into two major camps. In one camp are those conceptions that are thoroughgoingly impartialist. That is, their impartialism applies to any good over which people might make competing claims. I shall refer to this group of conceptions as Unrestricted Impartialism, or UI. Opposed to this camp of liberal conceptions of justice is that group of conceptions that limits impartialism to some goods but puts other goods beyond the writ of justice (enforceable morality). I shall call this group of conceptions Restricted Impartialism, or RI. In this essay, my aim is to paint these two conceptions and their strengths and weaknesses using a very broad brush. In philosophy, the devil is more frequently than not in the details, and broad brush strokes generally obfuscate more than illuminate. Moreover, my metier tends to be fine analytical points and not big picture tableaux. Nonetheless, not only do space limitations preclude in-depth analyses of the conceptions I discuss, but my message is a wholesale rather than retail one, namely, that there is a single and major gulf dividing liberal conceptions of justice into these two distinct camps. Analytical fine points about these conceptions are beside the point.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"41 1","pages":"949"},"PeriodicalIF":0.0,"publicationDate":"2003-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.446020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789752","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":"Escaping the Asylum: When Freedom is a Crime","authors":"G. Morris","doi":"10.2139/SSRN.417260","DOIUrl":"https://doi.org/10.2139/SSRN.417260","url":null,"abstract":"This article discusses the constitutionality and desirability of laws that criminalize escape by civilly committed mental patients from the hospitals or other treatment facilities in which they are confined. Although escape by sentence-serving convicts is a crime in many states, regardless of whether they escape from prison or from another place of confinement or custody, escape by \"regular\" civilly committed mental patients is not. Nevertheless, criminalization of escape is becoming increasingly popular for \"special\" civilly committed patients, such as individuals who have been acquitted of crime by reason of insanity and sexually violent predators. Pivotal Supreme Court decisions involving specially categorized mental patients are analyzed to assess whether criminalization of escape by these patients is constitutional. Of particular interest is the equal protection argument: If regular civilly committed mental patients are not prosecuted and punished for escape, can special civilly committed patients be prosecuted and punished? The article also discusses alternatives to the criminalization of escape that would assure the public's safety while avoiding constitutional challenges. Criminalization of escape by mental patients may be an unnecessary, and unwise, policy judgment if the risk of escape can minimized through enhanced security measures to prevent escape, treatment opportunities that offer patients the prospect of release, and clarification of authority to apprehend and return patients if escape does occur. Nevertheless, the article concludes by questioning whether public pressure to confine, and if possible, punish specially civilly committed patients will preclude use of these rational alternatives to criminalization of patient escape.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"40 1","pages":"481"},"PeriodicalIF":0.0,"publicationDate":"2003-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68716467","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":"What to Compensate? Some Surprisingly Unappreciated Reasons Why the Problem is So Hard","authors":"L. Katz","doi":"10.2139/SSRN.413640","DOIUrl":"https://doi.org/10.2139/SSRN.413640","url":null,"abstract":"Finding the rightful measure of compensation involves first finding the right baseline. But baseline problems, though common throughout law, are remarkably ill-understood. Rather than solve these problems outright, this essay seeks to get to the bottom of their multiple roots. The four kinds of cases being considered are typified by (1) the plaintiff whose leg the defendant tortiously broke - thus preventing him from getting on the plane that crashed (i.e., \"failure to worsen\" cases); (2) the plaintiff whose loss of legs due to defendant's tortious conduct caused her to give up her career as a professional athlete - with the result that she is now much happier and has no regrets about losing her former career (i.e., \"subjective improvement\" cases); (3) the promisee of an enforceable contractual promise asking to be put in the position he would have been in had the promise been kept rather than had the promise never been made (i.e, the contract damage question); (4) the plaintiff who but for defendant's tortious conduct would not exist, with particular emphasis on the descendants of slaves who but for slavery would not have existed, and surely not in the United States.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"40 1","pages":"1345"},"PeriodicalIF":0.0,"publicationDate":"2003-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68705017","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 Antitrust-Telecom Connection","authors":"Steven Semeraro","doi":"10.2139/SSRN.446101","DOIUrl":"https://doi.org/10.2139/SSRN.446101","url":null,"abstract":"The Telecommunications Act of 1996 has spurred more than a dozen antitrust cases against local telephone companies alleging that by violating the Act the companies maintain their monopolies over local telephone service and thereby violate Section 2 of the Sherman Act. Existing antitrust-regulatory accommodation law has proven incapable of resolving whether antitrust claims can rest on violations of the Act. The circuits are divided, and each side appears incapable of comprehending the analytical analysis of the other. The divergent opinions can be explained by the courts' implicit reliance on two different lines of antitrust-regulatory accommodation doctrine. But neither strand of existing doctrine is appropriate in the telecom/antitrust cases, because existing doctrine was designed to accommodate antitrust with regulation that sought public policy goals other than competition. Where regulation seeks, like the antitrust laws, to enhance competition, a new approach is necessary. Courts have long been the primary makers of competition policy. The Telecom Act constitutes a rare instance of broad, direct legislative competition policy making. When Congress speaks so directly, courts need doctrine that takes account of that message. This article proposes a two-step approach that asks (1) whether applying the antitrust laws would interfere with the competition-enhancing regulatory regime, and (2) if not, how the regulation should affect antitrust analysis. Six possible degrees of connection between antitrust and competition-enhancing regulation emerge. And the degree appropriate to the telecom/antitrust cases would presume that violations of the Telecom Act have anticompetitive effect.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"40 1","pages":"555"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68791672","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":"Punishing reproductive choices in the name of liberal genetics.","authors":"Alexander Morgan Capron","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"683-92"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781040","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":"Unbuckling the \"chemical straitjacket\": the legal significance of recent advances in the pharmacological treatment of psychosis.","authors":"Douglas Mossman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 4","pages":"1033-164"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24578646","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 Rawlsian approach to solving the problem of genetic discrimination in toxic workplaces.","authors":"Robert A Bohrer","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"747-67"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781044","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":"Does technological enhancement of human traits threaten human equality and democracy?","authors":"Michael H Shapiro","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"769-842"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781045","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}