For centuries, America has been known as the land of opportunity, where everyone has the opportunity to do anything that he dares to dream. These dreams, however, are often stifled for millions of Americans. These dreams can be stifled by economic inequality, economic immobility, and rampant discrimination — whether that discrimination has occurred on the basis of race, gender, age, religious affiliation, national origin, or even disability. Indeed, individuals with disabilities tend to be isolated and segregated from the rest of society.
{"title":"The ADAAA: Opening the Floodgates","authors":"Amelia Michele Joiner","doi":"10.2139/SSRN.2042074","DOIUrl":"https://doi.org/10.2139/SSRN.2042074","url":null,"abstract":"For centuries, America has been known as the land of opportunity, where everyone has the opportunity to do anything that he dares to dream. These dreams, however, are often stifled for millions of Americans. These dreams can be stifled by economic inequality, economic immobility, and rampant discrimination — whether that discrimination has occurred on the basis of race, gender, age, religious affiliation, national origin, or even disability. Indeed, individuals with disabilities tend to be isolated and segregated from the rest of society.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"10 7 1","pages":"331"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67876167","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":"Comment on Koppelman and Leiter","authors":"Christopher T. Wonnell","doi":"10.2139/ssrn.3595437","DOIUrl":"https://doi.org/10.2139/ssrn.3595437","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"47 1","pages":"987"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68611178","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}
Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or Good. Value pluralism is probably the central idea—you could say the single overarching idea—in the work of Sir Isaiah Berlin, the English philosopher and historian of ideas. Berlin’s theme is that individuals, and societies as well, have ideals and aspirations that conflict, and that therefore cannot all be fully realised. Thus a society cannot have perfect equality and perfect liberty because some people will exercise freedom to differentiate themselves, and hence to make themselves unequal to their fellow citizens. Equality or freedom may be at odds with other values as well, such as tradition, or the desire for
{"title":"On This Side of the Law and On That Side of the Law","authors":"M. Schwarzschild","doi":"10.2139/ssrn.3640723","DOIUrl":"https://doi.org/10.2139/ssrn.3640723","url":null,"abstract":"Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or Good. Value pluralism is probably the central idea—you could say the single overarching idea—in the work of Sir Isaiah Berlin, the English philosopher and historian of ideas. Berlin’s theme is that individuals, and societies as well, have ideals and aspirations that conflict, and that therefore cannot all be fully realised. Thus a society cannot have perfect equality and perfect liberty because some people will exercise freedom to differentiate themselves, and hence to make themselves unequal to their fellow citizens. Equality or freedom may be at odds with other values as well, such as tradition, or the desire for","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"46 1","pages":"755"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68616931","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}
District of Columbia v. Heller, pertaining to gun control, was addressed by a deluge of articles. However, one important point has been overlooked by commentators: the fact that Justice Breyer, in his dissenting opinion, used the term "proportionality approach" to describe American case law. Proportionality, which essentially requires that rights infringement be proportional to government ends, is the most dominant doctrine in constitutional adjudication in Europe, as well as in an increasing number of countries outside Europe. Interestingly, however, not a single foreign legal authority was cited by Breyer. This could represent a shift in strategy regarding the use of foreign law in American adjudication. Instead of introducing foreign law doctrines in a direct manner, an attempt is made to give them American credentials, thus preventing any criticism over the infiltration of foreign elements into American law. In this article we take note of this shift in strategy in the context of the foreign law debate and we then question of the validity of Breyer's reference to "proportionality" for describing American constitutional law. We argue that Justice Breyer was correct in his contention that a doctrinal framework which is very similar to proportionality is embedded in American constitutional law, namely that of balancing. However, we argue that Breyer has missed noting the important divergence between the respective positions of proportionality and balancing in the American and European legal systems, which stem from their very different historical, cultural, and institutional backgrounds. We also raise the question whether by tossing the term "proportionality" into the American constitutional lexicon Breyer may not have had another aim in mind, namely to create a framework which would bring American constitutional law closer to the thinking and method of operation of European constitutional law. Arguably, such a move should have been done more openly, by making the reference to foreign law explicit rather than implicit.
有关枪支管制的哥伦比亚特区诉海勒案(District Columbia v. Heller)被大量文章提及。然而，评论家们忽视了一个重要的问题:布雷耶法官在他的反对意见中使用了“相称性方法”一词来描述美国判例法。比例原则，本质上要求侵犯权利与政府目的成正比，是欧洲宪法裁决中最主要的原则，在欧洲以外越来越多的国家也是如此。然而，有趣的是，布雷耶没有引用任何外国法律权威。这可能代表了在美国审判中使用外国法的策略的转变。美国没有直接引进外国法律理论，而是试图赋予其美国资格，从而避免了对外国因素渗透到美国法律中的任何批评。在本文中，我们将在外国法辩论的背景下注意到这种策略的转变，然后我们将质疑布雷耶在描述美国宪法时提到的“相称性”的有效性。我们认为，布雷耶法官的论点是正确的，他认为美国宪法中嵌入了一个与比例原则非常相似的理论框架，即平衡原则。然而，我们认为布雷耶没有注意到美国和欧洲法律体系中相称性和平衡性各自立场之间的重要分歧，这种分歧源于它们非常不同的历史、文化和制度背景。我们还提出了一个问题，布雷耶将“相称性”一词扔进美国宪法词典，是否可能没有另一个目的，即创造一个框架，使美国宪法更接近欧洲宪法的思维和运作方法。可以说，这样的举动应该更公开地进行，明确而不是含蓄地提及外国法。
{"title":"The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law","authors":"M. Cohen-Eliya, Iddo Porat","doi":"10.2139/SSRN.1317833","DOIUrl":"https://doi.org/10.2139/SSRN.1317833","url":null,"abstract":"District of Columbia v. Heller, pertaining to gun control, was addressed by a deluge of articles. However, one important point has been overlooked by commentators: the fact that Justice Breyer, in his dissenting opinion, used the term \"proportionality approach\" to describe American case law. Proportionality, which essentially requires that rights infringement be proportional to government ends, is the most dominant doctrine in constitutional adjudication in Europe, as well as in an increasing number of countries outside Europe. Interestingly, however, not a single foreign legal authority was cited by Breyer. This could represent a shift in strategy regarding the use of foreign law in American adjudication. Instead of introducing foreign law doctrines in a direct manner, an attempt is made to give them American credentials, thus preventing any criticism over the infiltration of foreign elements into American law. In this article we take note of this shift in strategy in the context of the foreign law debate and we then question of the validity of Breyer's reference to \"proportionality\" for describing American constitutional law. We argue that Justice Breyer was correct in his contention that a doctrinal framework which is very similar to proportionality is embedded in American constitutional law, namely that of balancing. However, we argue that Breyer has missed noting the important divergence between the respective positions of proportionality and balancing in the American and European legal systems, which stem from their very different historical, cultural, and institutional backgrounds. We also raise the question whether by tossing the term \"proportionality\" into the American constitutional lexicon Breyer may not have had another aim in mind, namely to create a framework which would bring American constitutional law closer to the thinking and method of operation of European constitutional law. Arguably, such a move should have been done more openly, by making the reference to foreign law explicit rather than implicit.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"46 1","pages":"367"},"PeriodicalIF":0.0,"publicationDate":"2008-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1317833","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68162111","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}
'Dignity' can mean many things. In no sense is dignity itself a recognized constitutional right. But that hardly shows that dignity is constitutionally trivial. Dignity may help explain why we recognize constitutional rights in the first place. Dignity may also help explain the value and the scope and limits of constitutional rights. Of more immediately practical interest, dignity may help to fairly adjudicate between constitutional claims in conflict. This Article focuses on dignity in a fundamental sense as a value that can commensurate and fairly adjudicate between the often conflicting constitutional values of free speech and equal protection. As it turns out, the idea of dignity does not invariably push conflicts between free speech and equal protection toward the same resolution in every case. Dignity in the crucial sense can support or oppose the priority of either free speech or equal protection claims, depending upon the circumstances.
{"title":"Dignity and Conflicts of Constitutional Values: The Case of Free Speech and Equal Protection","authors":"R. Wright","doi":"10.2139/SSRN.1201423","DOIUrl":"https://doi.org/10.2139/SSRN.1201423","url":null,"abstract":"'Dignity' can mean many things. In no sense is dignity itself a recognized constitutional right. But that hardly shows that dignity is constitutionally trivial. Dignity may help explain why we recognize constitutional rights in the first place. Dignity may also help explain the value and the scope and limits of constitutional rights. Of more immediately practical interest, dignity may help to fairly adjudicate between constitutional claims in conflict. This Article focuses on dignity in a fundamental sense as a value that can commensurate and fairly adjudicate between the often conflicting constitutional values of free speech and equal protection. As it turns out, the idea of dignity does not invariably push conflicts between free speech and equal protection toward the same resolution in every case. Dignity in the crucial sense can support or oppose the priority of either free speech or equal protection claims, depending upon the circumstances.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"43 1","pages":"527"},"PeriodicalIF":0.0,"publicationDate":"2008-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68151735","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 essay examines the waxing support for the ideology and practice of economic liberty in the founding era. It points out that Americans of the late 18th century increasingly challenged British trade restrictions as well as long-accepted governmental regulation of the economy, raising both practical and philosophical objections. The paper considers various aspects of the colonial economy, including wage controls, regulations governing the price of bread and meat, the establishment of public markets, changes in land and inheritance laws, land speculation, and the growth of contracting in a market economy. It also probes the impact of the Revolutionary War on the emerging commitment to a free market. The paper then links the growing acceptance of economic liberty to the framing of state and federal constitutions. Although recognizing that the United States Constitution does not embody a particular economic theory, the paper concludes that the framers envisioned a substantially free market economy based on private property with a large measure of economic liberty for individuals to pursue their own interests.
{"title":"Economic Liberties and the Original Meaning of the Constitution","authors":"J. Ely","doi":"10.2139/SSRN.1018754","DOIUrl":"https://doi.org/10.2139/SSRN.1018754","url":null,"abstract":"This essay examines the waxing support for the ideology and practice of economic liberty in the founding era. It points out that Americans of the late 18th century increasingly challenged British trade restrictions as well as long-accepted governmental regulation of the economy, raising both practical and philosophical objections. The paper considers various aspects of the colonial economy, including wage controls, regulations governing the price of bread and meat, the establishment of public markets, changes in land and inheritance laws, land speculation, and the growth of contracting in a market economy. It also probes the impact of the Revolutionary War on the emerging commitment to a free market. The paper then links the growing acceptance of economic liberty to the framing of state and federal constitutions. Although recognizing that the United States Constitution does not embody a particular economic theory, the paper concludes that the framers envisioned a substantially free market economy based on private property with a large measure of economic liberty for individuals to pursue their own interests.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"45 1","pages":"673"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127814","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 approach of law and economics raised the visibility of the business law curriculum in legal education. But its narrow focus on efficiency and aggregate growth failed to explain the weaknesses of the orthodox free market model. In contrast, law and socioeconomics should enrich legal education by offering more compelling descriptions of market realities while also providing the opening for richer and wider discussions about alternative reform possibilities. Two legal fields that have acutely felt the pressures of globalization are labor and finance law. This article describes how both of these areas affect and are affected by globalization. The authors discuss the contribution of socioeconomics to our understanding of both the impacts of globalization on labor and finance, and potential responses to those impacts. They discuss the importance of consciously and explicitly recognizing the consequences of globalization and integrating socioeconomic concepts into our teaching of these areas of law.
{"title":"Labor and Finance as Inevitably Transnational: Globalization Demands a Sophisticated and Transnational Lens","authors":"Timothy A. Canova, C. Dickerson, K. Stone","doi":"10.31228/osf.io/3pcej","DOIUrl":"https://doi.org/10.31228/osf.io/3pcej","url":null,"abstract":"The approach of law and economics raised the visibility of the business law curriculum in legal education. But its narrow focus on efficiency and aggregate growth failed to explain the weaknesses of the orthodox free market model. In contrast, law and socioeconomics should enrich legal education by offering more compelling descriptions of market realities while also providing the opening for richer and wider discussions about alternative reform possibilities. Two legal fields that have acutely felt the pressures of globalization are labor and finance law. This article describes how both of these areas affect and are affected by globalization. The authors discuss the contribution of socioeconomics to our understanding of both the impacts of globalization on labor and finance, and potential responses to those impacts. They discuss the importance of consciously and explicitly recognizing the consequences of globalization and integrating socioeconomic concepts into our teaching of these areas of law.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"31 1","pages":"109"},"PeriodicalIF":0.0,"publicationDate":"2006-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639091","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}
Looking back on forty-five years of law review writing, Professor Kamisar concludes that, to use George Orwell's words, he has been moved to write by "a sense of injustice" and the need to "expose" "some lie," e.g., the lie that the trial judge or the prosecuting attorney can be counted on to protect the rights of unrepresented defendants. He maintains further that law professors generally should feel an obligation to write because they can think through and research exhaustively any and every problem they meet along the way without worrying about billable hours and they can do so "under working conditions that thousands of busy, hurried practitioners would envy."
{"title":"Why I Write (and Why I Think Law Professors Generally Should Write)","authors":"Y. Kamisar","doi":"10.2139/SSRN.829285","DOIUrl":"https://doi.org/10.2139/SSRN.829285","url":null,"abstract":"Looking back on forty-five years of law review writing, Professor Kamisar concludes that, to use George Orwell's words, he has been moved to write by \"a sense of injustice\" and the need to \"expose\" \"some lie,\" e.g., the lie that the trial judge or the prosecuting attorney can be counted on to protect the rights of unrepresented defendants. He maintains further that law professors generally should feel an obligation to write because they can think through and research exhaustively any and every problem they meet along the way without worrying about billable hours and they can do so \"under working conditions that thousands of busy, hurried practitioners would envy.\"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"41 1","pages":"1747"},"PeriodicalIF":0.0,"publicationDate":"2005-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67837794","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 is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.
{"title":"Barnett and the Constitution We Have Lost","authors":"S. Griffin","doi":"10.2139/SSRN.565024","DOIUrl":"https://doi.org/10.2139/SSRN.565024","url":null,"abstract":"This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"42 1","pages":"283"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67764269","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}
Many modern intellectual property scholars have argued that the creation of patents and copyrights, for inventions and writings, respectively, should be resisted on the grounds that these forms of property necessarily infringe ordinary forms of liberty, in contrast to property that is found in tangible things. This article rejects that claim by showing how property conflicts with liberty in both settings, but that the different configurations of rights observed in these various areas is defensible on the grounds that the loss of liberty for all persons is, to the extent that human institutions can make it, compensated by the increased utility generated by the various property rights in question. The appropriate approach to intellectual property is not abolition but fine-tuning in an effort to increase the gains from intellectual property generally.
{"title":"Liberty versus Property? Cracks in the Foundations of Copyright Law","authors":"R. Epstein","doi":"10.2139/SSRN.529943","DOIUrl":"https://doi.org/10.2139/SSRN.529943","url":null,"abstract":"Many modern intellectual property scholars have argued that the creation of patents and copyrights, for inventions and writings, respectively, should be resisted on the grounds that these forms of property necessarily infringe ordinary forms of liberty, in contrast to property that is found in tangible things. This article rejects that claim by showing how property conflicts with liberty in both settings, but that the different configurations of rights observed in these various areas is defensible on the grounds that the loss of liberty for all persons is, to the extent that human institutions can make it, compensated by the increased utility generated by the various property rights in question. The appropriate approach to intellectual property is not abolition but fine-tuning in an effort to increase the gains from intellectual property generally.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"42 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.529943","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67758891","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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