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.
{"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}
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.
在尼尔诉明尼苏达州案中，最高法院将禁令添加到行政许可中，作为一种事先限制。虽然附近法院将禁令限制为一种预先限制，但它批准了刑事制裁和损害赔偿判决。先前约束的标签类似于死刑判决。这篇文章坚持认为，如此大规模的报复是过度的。法官禁止被告的诽谤侵权行为的禁令检验了Near and prior restraint doctrine，因为诽谤不受第一修正案的保护。反对诽谤的禁制令已经超越了“先抑原则”和“衡平法不禁止诽谤”这一公平原则下的直接禁令，这是令人生畏的。本文考察了沙利文诉《纽约时报》案中的诽谤特权，它们在真实与虚假之间的紧张关系，以及它们在补偿性和惩罚性损害赔偿方面的局限性。它通过审查几个衡平法原则来检验禁止损害赔偿的禁令:不充分的先决条件-不可弥补的伤害规则，禁令作为预防性救济，临时限制令，初步禁令，禁令保释金，无陪审团禁令审判，起草禁令的任务以避免模糊和过于宽泛，使用动议来修改-解散禁令，以及宣告判决，蔑视，补偿性，强制性或刑事，包括附带禁令规则。它重视重要的先行约束奖学金，包括爱默生教授和布拉西教授的奖学金。优先限制原则的运用已经超越了其产生的政策原因。这篇文章的结论是，损害赔偿和禁令之间的区别并不能保证不同的处理。在Balboa Island VillageInn诉Lemen案中，加州最高法院批准了一项有针对性的禁令，禁止被告重复已证实的诽谤。从罗斯科·庞德(Roscoe Pound)开始的有影响力的学者，包括最近的瑞迪什、杰弗里斯、肖尔和阿迪亚教授，已经削弱了优先约束理论的推理和应用。导致禁令的程序可以通过要求事先通知、对抗性裁决和狭义起草来扩大。一个经过适当裁决和起草的禁令，明确禁止被告的诽谤，将在不威胁言论自由价值的情况下防止有害的侵权行为。文章最后要求废除《格言》，暂停或限制诽谤的优先限制原则。
{"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}
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.
{"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}
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.
{"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}
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.
{"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}
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.
鉴于《平价医疗法案》(Affordable Care Act)的合宪性，去年《商业条款》受到了广泛关注。尽管最高法院支持该法案，但最高法院确实认为，国会在《商业条款》(Commerce Clause)的规定下，通过强制实行全国医疗保健，越权了。尽管最近的这项裁决支配着国会的权力，但《商业条款》仍然是国会颁布涉及州际贸易的某些类型的联邦立法的有效手段。本文提出的其中一项立法是《联邦销售法》。目前，销售法是以《统一商法典》第2条为蓝本的州立法。第2条变得越来越无效、偏颇和过时，从而阻碍了经济发展，增加了商业交易的复杂性，增加了争端。在这些缺陷过度阻碍商业交易之前，必须加以修正。不幸的是，目前的统一守则修订程序由于其繁琐和面向协商一致的方法而阻碍了修改第2条的尝试。由于无法通过现行制度修改第2条，因此需要对销售法采取一种全新的方法-制定一项联邦销售法来取代第2条。这样的法案将改善第2条的不足之处，并且在商业条款和传统的联邦制观念下都属于国会的权力范围。
{"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}
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.
{"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}
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.
{"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}
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.
{"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}
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.
{"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}
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