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54 Santa Clara L. Rev. [i] (2014)

handle is hein.journals/saclr54 and id is 1 raw text is: SANTA CLARA LAW REVIEW VOLUME 54 2014 NUMBER 1 CONTENTS ARTICLES INCARCERATION'S INCAPACITATIVE SHORTCOMINGS Incapacitation is the removal of an offender's ability to commit further crime. This essay identifies two distinct types of incapacita- tive effects: offense-specific incapacitation and victim-specific inca- pacitation. The former focuses on limitations on the offender's range of conduct. The latter focuses on limitations on the offender's access to particular populations. As a punishment, incarceration incapacitates quite incompletely. Because imprisonment does not render inmates totally unable to com- mit crime, it fails to achieve complete offense-specific incapacitation. And, because it merely substitutes one set of potential victims for an- other, imprisonment fails on the total victim-specific incapacitation front as well. Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations. When the incapacitative benefit of incarceration is dis- cussed, however, it is not usually described in such a circumscribed way. Rather, imprisonment is often said to fully achieve incapacita- tion by removing offenders from society. By excluding the victims of prison crimes from the relevant measuring population, such state- ments imply that the sentencing authority possesses no interest in such crimes. To avoid such erroneous discounting, this essay endeav- ors to accurately describe the offense-specific and victim-specific in- capacitative benefits and limitations of incarceration Kevin Bennardo. ................................. 1 PAGING DR. DERRIDA: A DECONSTRUCTIONIST APPROACH TO UNDERSTANDING THE AFFORDABLE CARE ACT LITIGATION This Article connects French deconstructionist Jacques Derrida's ideas about hospitality to the federalism discussion in the Affordable Care Act decision. I claim that Derrida identified fundamental con- flicts in the host-guest relationship, which parallel the difficulties in- herent in the federal-state relationship. Chief Justice Roberts and Justice Ginsburg's opinions in National Federation of Independent Business v. Sebelius illustrate these difficulties and show that the Court is locked in an anachronistic construction of the federal-state relationship-one that is grounded in the discourse of violence and leaves few options for positive power-sharing. This Article proposes that we recast our ideas about federalism by displacing the violence paradigm with a hospitality paradigm Laura A. Cisneros .................................. 19 ACCIDENTAL OR WILLFUL?: THE CALIFORNIA INSURANCE LAW CONUNDRUM It is a fundamental principle of Insurance Law that coverage ex- tends to fortuitous losses, i.e., accidents. Historically, accidents were

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