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Full-Text Articles in Law
Sherman V. Lloyd And Mutual Selection In California Limited Partnership Law, George M. Means
Sherman V. Lloyd And Mutual Selection In California Limited Partnership Law, George M. Means
San Diego Law Review
This Comment examines the issue of when a limited partnership is in existence in light of the California Court of Appeal's decision in Sherman v. Lloyd, in which it held that no limited partnership exists unless the limited partners have "mutually selected" each other for admission into the limited partnership. The author criticizes this recent twist in limited partnership doctrine, arguing from both a practical and an analytical standpoint that "mutual selection" has no place in California law.
Justice Brennan And Freedom Of Expression Doctrine In The Burger Court, Edward V. Heck
Justice Brennan And Freedom Of Expression Doctrine In The Burger Court, Edward V. Heck
San Diego Law Review
This Article examines Justice Brennan's voting record and opinions in first amendment cases decided since 1969 and compares Justice Brennan's votes to those of his colleagues on the Burger Court. The author investigates the major themes that run through Justice Brennan's opinions in an attempt to ascertain whether Justice Brennan's votes are rooted in a coherent doctrine of freedom of expression, and whether he has moved away from his reliance on the functional view of the first amendment. The author concludes that Justice Brennan has developed an approach that combines a conservative approach to freedom of expression with a more …
A California Juvenile's Right To Trial By Jury: An Issue Now Overripe For Consideration, Carol R. Berry
A California Juvenile's Right To Trial By Jury: An Issue Now Overripe For Consideration, Carol R. Berry
San Diego Law Review
This Comment addresses the issue of a juvenile's right to trial by jury. The author traces the origin and development of the juvenile justice system. The author argues that a quid pro quo system was established where a minor's due process rights were exchanged for the protection and rehabilitative efforts of the juvenile court, but that juvenile courts have failed to effect this purpose. The author analyzes United States Supreme Court case law that extends procedural due process rights to minors. The author then analyzes California case law and addresses the trend toward the "criminalization" of California juvenile delinquency proceedings. …
Rcra Immunity From Nepa: The Epa Has Exceeded The Scope Of Its Authority, Kristina Hauenstein
Rcra Immunity From Nepa: The Epa Has Exceeded The Scope Of Its Authority, Kristina Hauenstein
San Diego Law Review
This Comment questions the Environmental Protection Agency's enactment of regulations that exempt all Resource Conservation and Recovery Act permits from the Environmental Impact Statement provisions of the National Environmental Policy Act. The author examines administrative law and the legislative history and text of both NEPA and RCRA to determine whether the EPA, in enacting these regulations, exceeded the scope of its statutory authority. The author then addresses the public policy considerations against condoning such regulatory overreaching if the EPA indeed exceeded RCRA's scope. The author also discusses the constitutional implications of an administrative agency regulation that categorically defeats congressional mandates. …
Challenges To Jury Composition: Purging The Sixth Amendment Analysis Of Equal Protection Concepts, Laurie Magid
Challenges To Jury Composition: Purging The Sixth Amendment Analysis Of Equal Protection Concepts, Laurie Magid
San Diego Law Review
This Article examines the use of the sixth amendment to challenge the composition of a jury. The author argues that it is the sixth amendment's cross-section analysis, and not the equal protection analysis, which can fully protect a defendant's right to a fair and impartial jury. The author examines the case law and the basic approaches taken by courts in addressing sixth amendment challenges to jury composition, and then discusses the difficulties a defendant faces in establishing standing in an equal protection challenge to jury composition. The author goes on to explore the different definitions of groups that cannot be …
Equal Protection For The Poor: Fair Distribution To Meet Brutal Needs, William Rich
Equal Protection For The Poor: Fair Distribution To Meet Brutal Needs, William Rich
San Diego Law Review
This Article proposes a principle of equal protection based on a "fair distribution" of basic government services and benefits to those with "brutal needs." The author identifies the theoretical perspectives of constitutional interpretation that have influenced the analysis and examines the historical developments that have created the need to change the constitutional treatment of welfare assistance. The author continues on to review the arguments that illustrate the difficulties in developing articulable standards for the Supreme Court to review and attempts to resolve some of the doctrinal problems encountered by the Court. The author concludes that the Court should recognize an …
Expanding Bankruptcy Protection To The Individual Businessman: Taking Chapter 12 One Step Further, Andrew D. Simons
Expanding Bankruptcy Protection To The Individual Businessman: Taking Chapter 12 One Step Further, Andrew D. Simons
San Diego Law Review
In this Comment, the author examines the issues surrounding the recent enactment of a new Chapter 12 of the Bankruptcy Code and its protection of individual bankruptcies. The author argues that, while the Code provides both consumer debtors and large corporations with a mechanism for restructuring their debts and continuing an on-going concern, it does not address the needs of individual businessmen with large business structures. The author examines the Congressional enactment of the new Chapter 12, which was designed to provide individual farmers with the chance to reorganize. The author argues that Congress should expand this newly afforded protection …
Empathy Subjectivity And Testamentary Capacity, Jane B. Baron
Empathy Subjectivity And Testamentary Capacity, Jane B. Baron
San Diego Law Review
This Article examines the requirements of testamentary capacity in the execution of wills, and the difficulties that courts face in determining a testator's intent. The author begins by describing the doctrine of testamentary capacity and explores its connection to the ideas of individualism. The author then examines the tests that courts have adopted for assessing testamentary capacity and argues that these tests have the potential to conflict with the idea that values are subjective. The author proceeds to illustrate how courts typically empathize with the testator, rather than focus on the testator's abstract ability to reason, and explores the relationship …
Serious Tort Law Reform, Stephen D. Sugarman
Serious Tort Law Reform, Stephen D. Sugarman
San Diego Law Review
In this Article, the author argues that tort law generates more perverse behavior than safety and that it is an expensive and unfair system of compensating victims. The author critiques various attempts at tort law reform, suggests abandoning the traditional form of tort law as it exists today, and proposes several wide-ranging changes in the areas of compensation and damages.
Up With Torts, Joseph W. Little
Up With Torts, Joseph W. Little
San Diego Law Review
This author presents an additional critique of Prof. Sugarman's tort reform proposal. The author argues that, while tort law does have its problems, potential tort law reforms should be made within the existing tort law framework, rather than completely abandoning the law of torts.
On Sugarman On Tort-Chopping, Oscar S. Gray
On Sugarman On Tort-Chopping, Oscar S. Gray
San Diego Law Review
In this Article, the author critiques Prof. Sugarman's tort reform proposal. While agreeing with Prof. Sugarman's overall proposal, the author suggests that reform could better be achieved through following the themes that have been developing in twentieth century tort law, rather than repudiating the entire system.
North America's Most Ambitious No-Fault Law: Quebec's Auto Insurance Act, Jeffrey O'Connell, Charles Tenser
North America's Most Ambitious No-Fault Law: Quebec's Auto Insurance Act, Jeffrey O'Connell, Charles Tenser
San Diego Law Review
In this Article, the authors describe the Automobile Insurance Act of Quebec, its provisions for damages, and its exceptions.
Wrongful Death Damages In California: On The Brink Of Full Compensation, Thomas E. Courtney Jr.
Wrongful Death Damages In California: On The Brink Of Full Compensation, Thomas E. Courtney Jr.
San Diego Law Review
This Comment addresses the denial by California courts of mental anguish damages in wrongful death actions, despite strong policy reasons to the contrary. The author discusses the inconsistencies that exist when outdated legal doctrine preclude compensation for a recognized, legitimate element of damages, and proposes that mental anguish damages be recognized in wrongful death actions. Additionally, the author explores the concept of "hedonic value" and its potential application in wrongful death damage assessment.
How Serious Is Sugarman's "Serious Tort Law Reform"?, Monroe Berkowitz
How Serious Is Sugarman's "Serious Tort Law Reform"?, Monroe Berkowitz
San Diego Law Review
This author again presents a critique of Prof. Sugarman's tort reform proposal. The author argues that, while Prof. Sugarman's critique and analysis of the problems of current tort law are valid, his solutions will not lead to the desired result.
The Social Insurance-Deterrence Dilemma Of Modern North American Tort Law: A Canadian Perspective On The Liability Insurance Crisis, Michael J. Trebilcock
The Social Insurance-Deterrence Dilemma Of Modern North American Tort Law: A Canadian Perspective On The Liability Insurance Crisis, Michael J. Trebilcock
San Diego Law Review
This Article surveys the trends in the United States and Canadian tort systems and discusses how they have impacted American and Canadian liability insurance markets. A major thesis of this Article is that the changing complexion of the United States tort system, paralleled by similar trends in Canada, explains many of the recent problems in availability, affordability and adequacy of liability insurance. Changes in parameters of liability and quantum of damage have made it increasingly difficult for insurers to price various types of risks. In particular, the author argues that attempts to pursue deterrence objectives and compensation (social insurance) objectives …
Wickline V. State: The Emerging Liability Of Third Party Health Care Payors, Dorsett Marc Lyde
Wickline V. State: The Emerging Liability Of Third Party Health Care Payors, Dorsett Marc Lyde
San Diego Law Review
This Comment examines the issue of liability of third party health care payors in light of the decision in Wickline v. State. The author argues that third party payor liability for modern medicine is experiencing a tension that revolves around the need for quality medical care and the concurrent problem of the rising cost of medical services. The author further argues that third party payors are being pressured by California courts to provide carefully designed benefit programs that allow physicians to make quality health care decisions without having to worry about the payment source of additional costs. The author assesses …
Serious Tort Reform Isn't: A Critique Of Professor Sugarman's "Serious Tort Law Reform", Harry M. Snyder
Serious Tort Reform Isn't: A Critique Of Professor Sugarman's "Serious Tort Law Reform", Harry M. Snyder
San Diego Law Review
In another critique of Prof. Sugarman's proposal, the author argues that Prof. Sugarman's proposals do little to practically solve the current problems of victim compensation, and in fact leave many victims uncompensated and does not provide incentives for safe behavior. The author further argues that Prof. Sugarman's proposals lack the requisite impartiality to objectively effect serious tort reform.
Defining The Agenda For Serious Tort Reform, Alfred W. Cortese Jr., Yosef J. Riemer
Defining The Agenda For Serious Tort Reform, Alfred W. Cortese Jr., Yosef J. Riemer
San Diego Law Review
In this Article, the authors support Prof. Sugarman's tort reform proposals, but argue that these proposals need more development before they will produce actual change.
Marine Pollution And The Law Of The Sea, J. Peter A. Bernhardt
Marine Pollution And The Law Of The Sea, J. Peter A. Bernhardt
San Diego Law Review
This article reviews, Marine Pollution and the Law of the Sea, by John Warren Kindt, published by William S. Hem & Co., Inc. in 1986.
The Gulf Of Sidra, Roger Cooling Haerr
The Gulf Of Sidra, Roger Cooling Haerr
San Diego Law Review
This Comment evaluates the validity of the Libyan claim to the Gulf of Sidra in relation to the Law of the Sea Convention. The author analyzes the lawfulness of U.S. naval maneuvers within the Gulf, and then analyzes the resort to the use of force in the settlement of this dispute within the U.N. Charter and customary international law.
Marine Pollution: Injury Without A Remedy, M. Casey Jarman
Marine Pollution: Injury Without A Remedy, M. Casey Jarman
San Diego Law Review
Pollution of coastal and ocean waters is a complex and serious problem. Many contaminants reaching the ocean are harmful to marine organisms. Pollution affects the marine environment at all levels, from marine organisms to human beings. Along with the environment, the economy suffers injury because of damage to food sources. This Article discusses the role of federal courts as a forum for redress of damages suffered from the pollution of coastal and ocean waters. It examines conflicting state and federal common law and statutory remedies for marine pollution. It concludes that in the face of the federal judiciary's retreat, Congress …
The 1982 U.N. Convention On The Law Of The Sea: A Midstream Assessment Of The Effectiveness Of Article 309, John King Gamble Jr.
The 1982 U.N. Convention On The Law Of The Sea: A Midstream Assessment Of The Effectiveness Of Article 309, John King Gamble Jr.
San Diego Law Review
This Article examines the United Nations Convention on the Law of the Sea and the stand that it takes on reservations. The author argues that article 309 prohibits all reservations, while article 310 permits declarations and statements, provided these do not purport to exclude or modify the legal effect of the Convention. The author examines all declarations to determine if the letter and spirit of articles 309 and 310 are being met. The author further offers some observations about the effects of article 309 on participation levels in the treaty.
The Removal Of Offshore Installations And Conflicting Treaty Obligations As A Result Of The Emergence Of The New Law Of The Sea: A Case Study, Paul V. Mcdade
The Removal Of Offshore Installations And Conflicting Treaty Obligations As A Result Of The Emergence Of The New Law Of The Sea: A Case Study, Paul V. Mcdade
San Diego Law Review
of the sea context can be amended, modified, or terminated in a variety of ways, and that, frequently, the substantive coverage of a new or proposed treaty will overlap the scope of a treaty already in force. The author further argues that states can create divergent practices that create new norms of behavior. The author suggests that the complex manner in which international law evolves can be illustrated by examining the rules regarding the removal of offshore installations, and analyzes the interacting factors that produce binding obligations on states parties by tracing the development of the law governing offshore installation …
Recent Developments In The Law Of The Sea 1986, Heidi E. Brown
Recent Developments In The Law Of The Sea 1986, Heidi E. Brown
San Diego Law Review
Nineteen eighty-six witnessed the adoption of "Resolution II" of the United Nations Convention on the Law of the Sea (LOS Convention), dealing with deep seabed mining. While the United Nations General Assembly reaffirmed its support of the LOS Convention, only seven nations ratified or acceded to the Convention in 1986. Some success was seen in fishing treaties and protection of marine mammals. Renewed concern surfaced regarding pollution of our oceans. Lastly, a long-brewing controversy between the United States and Libya erupted into a military confrontation in March, creating the major territorial dispute of 1986.
Sand Rights: Using California's Public Trust Doctrine To Protect Against Coastal Erosion, Michael A. Corfield
Sand Rights: Using California's Public Trust Doctrine To Protect Against Coastal Erosion, Michael A. Corfield
San Diego Law Review
This Comment examines the potential use of the public trust doctrine in the context of public beach. The author argues that reduced stream flow has resulted in much less sand being transported to California beaches and that much of the coastline is eroding at an alarming rate. The author further argues that the public trust doctrine provides that the tidelands are held in trust by the state for the benefit of the public, but that most legislation regarding the public trust doctrine has focused on ownership interests in public trust resources. The author suggests a system of public rights to …
Foreword, Elisabeth Mann Borgese
Foreword, Elisabeth Mann Borgese
San Diego Law Review
Twenty years have passed since preparation began for the Third United Nations Conference on the Law of the Sea - the longest, largest, and most complex international conference ever held. As regular readers of this journal know, this development was triggered by the now classical address by the Delegate of Malta, Ambassador Arvid Pardo, to the United Nations General Assembly on November 1, 1967.
The Doctrine Of Ancient Title: Unknown Origins Uncertain Future, Barry Lawrence Ruderman
The Doctrine Of Ancient Title: Unknown Origins Uncertain Future, Barry Lawrence Ruderman
San Diego Law Review
This Comment examines the nature of state claims that various coastal waters should be classified as the state's internal waters and the recent application by the Supreme Court of the doctrine of ancient title to these claims. The author argues that, while the doctrine of ancient title is the oldest methods of acquiring territory, its introduction into a domestic dispute is controversial, and has significant domestic and international ramifications. The author discusses the origins of ancient title doctrine and its application to such state claims. The author takes issue with the Supreme Court's implicit recognition of ancient title in a …