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Full-Text Articles in Law
A Tale Of Two Cultures: Or Making The Proper Connection Between Law, Social History And The Political Economy Of Despair, Robert J. Cottrol
A Tale Of Two Cultures: Or Making The Proper Connection Between Law, Social History And The Political Economy Of Despair, Robert J. Cottrol
San Diego Law Review
In this Article, Professor Cottrol examines a pervasive culture of pessimism amongst a minority of underclass Black Americans the likes of which must be addressed if America's laws and public policy is to complete the unfinished work of the Civil Rights Revolution. The author argues that the development this culture is the result of long-term historical trends, the results of which came to fruition after the Second World War. He suggests Americans must shift their focus from familiar histories of southern slavery and Jim Crow to an examination of the histories of race relations in northern cities. Further, the author …
Racial Subordination Through Formal Equal Opportunity, Roy L. Brooks
Racial Subordination Through Formal Equal Opportunity, Roy L. Brooks
San Diego Law Review
In this Article, Professor Brooks examines the current state of "formal equal opportunity" and finds it may not be the final expression of interracial relations in the United States. The inquiry begins with the realization that after the passage of hundreds of civil rights laws, Black Americans seem worse off socially and economically than Black Americans were under Jim Crow. The author criticizes civil rights analysis for its failure to ask the right question - the "subordination question." This question would require scholars to analyze the subordinating force or mechanism in civil rights law which the author believes to be …
Relations Between The Sexes: Timely Vs. Timeless Principles, Joel J. Kupperman
Relations Between The Sexes: Timely Vs. Timeless Principles, Joel J. Kupperman
San Diego Law Review
In this Article, Professor Kuperman examines the morality of affirmative action with a primary focus on affirmative action for women. He outlines what he feels is a convincing case for a philosophically opposed position: that affirmative action programs are justified. After discussing the criticisms leveled against affirmative action, the author concludes by suggesting that the strongest case for affirmative action rests on its relation to a just society. The relation is that affirmative action should lead to a just society.
Local Knowledge, Local Color: Critical Legal Studies And The Law Of Race Relations, Gerald Torres
Local Knowledge, Local Color: Critical Legal Studies And The Law Of Race Relations, Gerald Torres
San Diego Law Review
In this Article, Professor Torres examines the meaning and content of Critical Legal Studies (CLS), focusing on the struggle for racial equality. He suggests ways in which understanding the relationship between law and culture can enable, both academics and practitioners, to construct theoretical foundations for the next generation of race relations. Understanding how the law of race relations has emerged and changed over the past twenty-five years is possible only by understanding how the dominant culture has accommodated itself to the changed legal landscape. Central to the inquiry is understanding American cultural pluralism as an expression of cultural domination and …
California's Characterization Of Credit Acquisitions During The Post-Separation Period, Curtis Barnes Jr.
California's Characterization Of Credit Acquisitions During The Post-Separation Period, Curtis Barnes Jr.
San Diego Law Review
In California, the community property is liable for debts incurred during separation. However, proceeds from these debts may be characterized as separate property of the acquiring spouse. Thus, the community, even though suffering the risks of liability, is disallowed the benefits of such risks. This Comment argues that the current lender's intent analysis applied upon credit acquisition should be discontinued in favor of the exposure analysis. Further, the Comment argues that community property debt liability during separation arises only if the debt is related to the community which occurs a) if the liability benefits the community; or b) if the …
What Is An Action For Purposes Of California Civil Procedure Code Section 726, Beth Jo Zeitzer
What Is An Action For Purposes Of California Civil Procedure Code Section 726, Beth Jo Zeitzer
San Diego Law Review
In the 1984 case, Bank of America v. Daily, the California Court of Appeal held that a bank's set off was an action for purposes of California Civil Procedure Code section 726 (the one action rule). The bank lost over $170,000 in security due to this $10,000. California courts have circumvented the policies behind section 726 by interpreting the one action rule expansively. This Comment argues that debtor protection is no achieved through inequitable creditor remedies and that legislative reform is necessary to achieve the protection that section 726 intended to provide California debtors.
Taylor V. Illinois: Supreme Court Approves Preclusion Of Defense Witnesses For Discovery Violation, William Polansky
Taylor V. Illinois: Supreme Court Approves Preclusion Of Defense Witnesses For Discovery Violation, William Polansky
San Diego Law Review
In Taylor v. Illinois, the United States Supreme Court held that preclusion of defense witnesses for discovery violations is not absolutely prohibited by the Compulsory Process Clause of the Sixth Amendment. This Note analyzes the Court's reasoning in the context of past Supreme Court decisions on the Compulsory Process guarantees. The analysis reveals that the Court's decision has substantial shortcomings. Holding that the compulsory process does not absolutely bar the preclusion sanction implies that under some circumstances compulsory process does bar the preclusion sanction, necessitating a balancing test. The test purportedly adopted by the Court is cast in such vague …
Should Payments To A Church For Participation In Religious Practices Be Tax Deductible, Ted D. Billbe Ii
Should Payments To A Church For Participation In Religious Practices Be Tax Deductible, Ted D. Billbe Ii
San Diego Law Review
This Comment reviews and evaluates the legal and analytical foundations of federal circuit decisions either allowing or disallowing taxpayers to take a charitable deduction for contributions made to a church for the purposes of allowing them to participate in religious practices. Specifically, the First, Fourth and Ninth Circuits have disallowed a deduction for payments made to churches for the above reason. The Eighth Circuit alone has upheld the payment is charitable. The Comment analyzes section 170 of the Internal Revenue Code and Congress's intent behind its enactment, as well as Supreme Court decisions supplementing the code. The Comment concludes that …
The Constitutional Requirement Of Some Evidence, Gerald L. Neuman
The Constitutional Requirement Of Some Evidence, Gerald L. Neuman
San Diego Law Review
In this Article, Professor Neuman gives serious attention to how the "some evidence" requirement has worked in the past, what functions it appears to serve and how it should work in the future. The requirement arose from the principle that "a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence." Yet the phrase remains largely undefined and its proper application remains obscured. This issue constitutional, jurisprudential, and federalism issues. The author concludes by stating that the notion of "some evidence" should be understood in terms of …
Accountants' Liability For Unaudited Historical And Prospective Financial Statements, Andrew L. Kozlowski
Accountants' Liability For Unaudited Historical And Prospective Financial Statements, Andrew L. Kozlowski
San Diego Law Review
The dramatic increase in the use of non-audit services is posing an increased litigation burden on the accountant. In negligence actions concerning non-audit services, courts have been reluctant to fully accept the profession's internal guidelines as recognized standards of care. Certain courts have also taken an expansive view, holding accountants liable to virtually all third parties. This Comment advocates that the courts fully adopt the standards of care outlined by pertinent AICPA pronouncements. Courts should also restrict accountants' liability for non-audit services to third parties who are in privity with the accountant.
Death With Dignity: Proposed Amendments To The California Natural Death Act, Lance L. Shea
Death With Dignity: Proposed Amendments To The California Natural Death Act, Lance L. Shea
San Diego Law Review
Most laws passed by the state legislature affect our lives, but at least this one, the California Natural Death Act, affects our death. For the most part today, gone is the ability to take that last breath before death in a warm, quiet bed at home surrounded by loved ones; that scene has been replaced by hospital rooms or long-term care facilities in which tubes, wires and electronic equipment of medical wizardry help prolong lives with icy indifference. In an attempt to lend more humanity and dignity to the dying process, this Comment advocates that the California legislature amend the …
Edwards V. Aguillard: Creation Science And Evolution - The Fall Of Balanced Treatment Acts In The Public Schools, Sherri Schaeffer
Edwards V. Aguillard: Creation Science And Evolution - The Fall Of Balanced Treatment Acts In The Public Schools, Sherri Schaeffer
San Diego Law Review
This Note first discusses the legal background of the creation-science/evolution debate in cases prior to Edwards. Next, it reviews the United States Supreme Court's decision in Edwards and analyzes the method used by the Court to strike down the Louisiana balanced treatment statute. Then, based on methodology used by the Edwards Court, the Note examines whether creation-science is religion or science and thus whether it violates the Constitution's establishment clause prohibition against advancement of religion in public schools. The author concludes that creation science is inherently religious and that it is highly unlikely balanced treatment acts will ever survive under …
Gwaltney Of Smithfield V. Chesapeake Bay Foundation: Balancing Interests Under The Clean Water Act, Lance L. Shea
Gwaltney Of Smithfield V. Chesapeake Bay Foundation: Balancing Interests Under The Clean Water Act, Lance L. Shea
San Diego Law Review
The subject of this Note is the citizen's right to enforce provisions of the Clean Water Act'(CWA) by bringing suit against violators in federal court. In Gwaltney of Smithfield v. Chesapeake Bay Foundation, the Supreme Court was faced with balancing the "citizen-plaintiff's" interest in enforcing pollution-control laws against the "industrial-defendant's" interest in adequately defending pollution enforcement suits and remaining free from frivolous actions. The issues in this case were the citizen's right to bring suit for damages created through past violations of the CWA and the requirements which the citizen-plaintiff must meet to receive standing. This Note will discuss these …
The Exclusive Economic Zone Of The Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An Eez, Jon M. Van Dyke, Joseph Morgan, Jonathan Gurish
The Exclusive Economic Zone Of The Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An Eez, Jon M. Van Dyke, Joseph Morgan, Jonathan Gurish
San Diego Law Review
Hawaii is the only state in the United Stats that consists solely of islands. These islands are unique among the states in climate and life style, and they present unique problems to those who would define their jurisdiction over the adjacent ocean areas. The eight main inhabited Hawaiian islands are entitled to territorial seas, contiguous zones, exclusive economic zones, and continental shelves, which are measured in the same way that similar zones are delineated outward from continental land territories. To the northwest of these main islands is a chain of smaller insular outcroppings that are a wildlife preserve for sea …
Coastal State Fishery Regulation Under International Law: A Comment On The La Bretagne Award Of July 17, 1986 (The Arbitration Between Canada And France), William T. Burke
Coastal State Fishery Regulation Under International Law: A Comment On The La Bretagne Award Of July 17, 1986 (The Arbitration Between Canada And France), William T. Burke
San Diego Law Review
It is now almost six years since the adoption of the LOS Convention and over ten years since the general acceptance of unilaterally extended fisheries jurisdiction, but we are still only in the early phases of working out the implications of these events for wealth and other value distributions. Establishing national fisheries regimes is a difficult and time-consuming task, even for the leading developed nations.
Will Canada Ratify The Law Of The Sea Convention, Ted L. Mcdorman
Will Canada Ratify The Law Of The Sea Convention, Ted L. Mcdorman
San Diego Law Review
In this Article, Professor McDorman discusses the fact that five years after the completion of the Law of the Sea Convention, Canada has not yet ratified the convention nor has it offered hints as to whether it will ratify the Convention. The author contrasts this stance with the fact that that Canada was a signatory, is one of its major beneficiaries, and that many of its high ranking officials expressed praise for the final document. Moreover, Canada has extensive economic interests in the ocean. The question of Canadian ratification of the LOS Convention is addressed from three perspectives: as a …
The Effect Of A Petition For Decertification On The Bargaining Process: The Reversal Of Dresser Industries, Timothy Silverman
The Effect Of A Petition For Decertification On The Bargaining Process: The Reversal Of Dresser Industries, Timothy Silverman
San Diego Law Review
In Dresser Industries, the National Labor Board held that an employee-filed petition for decertification does not permit an employer to refuse to bargain with the incumbent union. This Comment submits that the National Labor Relations Board should return to the rule that Dresser Industries expressly overruled. This Comment argues that the Telautograph Corporation rule requiring an employer to refuse to bargain, is the more workable and practical of the two conflicting rules and is more likely to achieve the legislative goals of the National Labor Relations Act.
Foreign Search And Seizure: The Fourth Amendment At Large, Kimberly A. Strang
Foreign Search And Seizure: The Fourth Amendment At Large, Kimberly A. Strang
San Diego Law Review
The Administration's recent policy of "Say No to Drugs" has sparked a veritable war on drugs within our country. Outside our borders, on the high seas, and in foreign lands, the war on drugs has been fought to prevent their entry through our borders. This "war" is encroaching on the fourth amendment rights of persons suspected of drug trafficking who are subjected to search and seizure. This Comment examines the fourth amendment protection these people have received, and argues that the courts should uphold the fourth amendment, rather than pay it verbal service.
Leave For Appeal: Departure As A Requirement For Review Of Deportation Orders, Peter J. Spiro
Leave For Appeal: Departure As A Requirement For Review Of Deportation Orders, Peter J. Spiro
San Diego Law Review
In this Article, Mr. Spiro addresses the congressional amendments to the Immigration Naturalization Act meant to combat the legal maneuvers calculated to defeat the execution of deportation orders. The addition of section 106 was meant to prohibit all appeals of deportation orders under which an alien had already departed the United States. The author analyzes the legislative history of the provision and notes that Congress intended to the departure rule to apply even in more egregious cases of INS misbehavior. The author discusses federal circuit law and finds that neither the rule nor its exception best serve the dual objectives …
Legal Immigration Reform, Alan K. Simpson
Legal Immigration Reform, Alan K. Simpson
San Diego Law Review
In this Article, Senator Simpson discusses Congress's sweeping legislation to control illegal immigration, the Immigration Reform and Control Act of 1996. Despite the passage of this legislation further legal immigration reform is still needed. The Article notes what reform is needed and addresses some of the major issues that Congress should consider when addressing it. Specifically, the two methods to achieve are (1) setting a national level of immigration which will be periodically reviewed by Congress and the Executive branch, and (2) increasing the number and proportion of visas granted to immigrants based on their skills or U.S. labor market …
A Research Agenda For Immigration Law: A Report To The Administrative Conference Of The United States, Stephen H. Legomsky
A Research Agenda For Immigration Law: A Report To The Administrative Conference Of The United States, Stephen H. Legomsky
San Diego Law Review
In this Article, Professor Legomsky notes the increased degree of attention on, and the importance of, immigration law. Specifically, Congress amended the Immigration and Nationality Act (INA) and these amendments will require new administrative machinery and present new problems of both law and policy. In addition, numerous immigration bills have been introduced and more are inevitable. In light of this increased attention, the Administrative Conference of the United States set out to identify the specific areas of immigration law in which study of administrative procedures would be especially productive. At the request of the Conference, the author identifies thirteen immigration …
Implementing Family Unification Rights In American Immigration Law: Proposed Amendments, John Guendelsberger
Implementing Family Unification Rights In American Immigration Law: Proposed Amendments, John Guendelsberger
San Diego Law Review
In this Article, Professor Guendelsberger examines the provisions of American immigration law that impede the entry of immediate family members of permanent resident aliens. It focuses particularly on the numerical limitations - the annual ceiling and the per-country ceiling on preference category visas - which force applicants from countries of high immigration demand to wait for long periods of time before visas become available. As a result, spouses and minor children of some permanent resident aliens enter immediately, while those from countries like Mexico or the Philippines must wait as long as eight years. The situation is further exacerbated by …
Rethinking The Role Of Politics In United States Immigration Law: The Helsinki Accords And Ideological Exclusion Of Aliens, Carlos Ortiz Miranda
Rethinking The Role Of Politics In United States Immigration Law: The Helsinki Accords And Ideological Exclusion Of Aliens, Carlos Ortiz Miranda
San Diego Law Review
In this Article, Mr. Miranda examines the statutory framework and case law addressing the ideological exclusion of aliens from the United States in light of the Helsinki Accords. The ideological exclusion, embodied in the Immigration and Nationality Act of 1952, is used to bar entry of noncitizens to the United States because of their espousal of proscribed ideologies. Congress temporarily suspended the ideological provisions until March 1, 1989 to allow for further comprehensive and permanent revisions in the area of deportation and exclusion. The Article is intended to contribute to the ongoing dialogue concerning such permanent and much needed changes.
A Comparative Study Of The Legal Rights And Duties Of Lawful Aliens In The United States And The People's Republic Of China, James Kraus, Wang Huijun
A Comparative Study Of The Legal Rights And Duties Of Lawful Aliens In The United States And The People's Republic Of China, James Kraus, Wang Huijun
San Diego Law Review
In this Article, Messrs. Kraus and Huijun set forth a comparative study of the legal rights and duties of aliens residing in the United States and in the People's Republic of China. Historical patterns and practices regarding aliens are considered for their contribution to and influence on current law and policies. The core of the Article focuses on the treatment of aliens under current law in both countries, how that law functions, and future perspectives. It does so primarily by contrasting the legal and practical positions of lawful aliens, as opposed to citizens, in both countries.
Protection For Undocumented Workers Under The Flsa: An Evaluation In Light Of Irca, Susan Charnesky
Protection For Undocumented Workers Under The Flsa: An Evaluation In Light Of Irca, Susan Charnesky
San Diego Law Review
In Sure-Tan v. NLRB, the United States Supreme Court held that undocumented workers are protected under the National Labor Relations Act. This Comment argues that protection should be extended under the Fair Labor Standards Act. This Comment also looks at the Immigration Reform and Control Act of 1986 (IRCA), and argues that the passage of IRCA should not affect the right of undocumented workers to be protected and receive remedies under the labor laws.
Irca's Antidiscrimination Provisions: Protections Against Hiring Discrimination In Private Employment, Richard Magalski
Irca's Antidiscrimination Provisions: Protections Against Hiring Discrimination In Private Employment, Richard Magalski
San Diego Law Review
Employers who hire unauthorized aliens face strict penalties from the Immigration Reform and Control Act of 1986 (IRCA). Recognizing the potential for discrimination against authorized aliens and United States citizens of minority national origin, IRCA also provides an administrative procedure to handle these discrimination claims. This Comment examines how the current antidiscrimination protections of title VII and 42 U.S.C. § 1981 can be used to supplement the IRCA protections. The conclusion is that IRCA, title VII, and section 1981 can interact to provide adequate protection for those likely to be the target of discrimination.