Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 30 of 45
Full-Text Articles in Law
Strict Products Liability On The Move: Cigarette Manufacturers May Soon Feel The Heat, David M. Reaves
Strict Products Liability On The Move: Cigarette Manufacturers May Soon Feel The Heat, David M. Reaves
San Diego Law Review
This Comment examines the potential for tort liability of cigarette manufacturers for the injuries caused by tobacco products. The author argues that, while plaintiffs have traditionally failed to recover damages from cigarette manufacturers for smoking-related injuries, recent lawsuits have revived the controversy over the liability of cigarette manufacturers. The author suggests that this revival has been bolstered by the increase in scientific evidence relating smoking to disease, and that the doctrines of strict liability and comparative fault have evolved so as to favor the injured plaintiff. The author argues that these doctrines should be expanded to impose liability on the …
The Invasion Of Sexual Privacy, Ali Khan
The Invasion Of Sexual Privacy, Ali Khan
San Diego Law Review
This Article critiques the Supreme Court's decision in Bowers v. Hardwick. The author examines the roots of sexual privacy and argues that the Hardwick case presented a simple right to privacy issue, but that the Court twisted the issue into a moral one. As a result, the author concludes that homosexuals were singled out for moral condemnation at the expense of a fundamental liberty.
What Are Law Clerks For?-Comments On Nix V. Whiteside, Carl A. Auerbach
What Are Law Clerks For?-Comments On Nix V. Whiteside, Carl A. Auerbach
San Diego Law Review
This Article critiques the Supreme Court's decision in Nix v. Whiteside. The author argues that, in its analysis, the majority failed to adequately consider the applicable state laws governing a lawyer's professional responsibilities, and instead sought to impose a broader vision of professional standards for the legal profession.
Constitutional Limitations On Prosecutorial Discovery, Edward A. Tomlinson
Constitutional Limitations On Prosecutorial Discovery, Edward A. Tomlinson
San Diego Law Review
This Article examines the constitutional issues surrounding the prosecution's interest in the discovery of relevant facts. The author argues that while this information is necessary for the prosecution to present the strongest possible case at trial and to meet the defendant's case, in most jurisdictions the prosecution may discover only the evidence that the defendant intends to present at trial. The author argues that a broader concept of prosecutorial discovery is permitted under the constitution, and that the prosecution should be able to discover all relevant facts useful in testing defense evidence and any documents or tangible things, which strengthen …
Like Kind Replacement Property: Animal, Vegetable, Or Mineral, Ridgeley A. Scott
Like Kind Replacement Property: Animal, Vegetable, Or Mineral, Ridgeley A. Scott
San Diego Law Review
This Article examines the development of the federal nonrecognition statutes and like kind provisions. The author argues that, although the statute was enacted in 1921 to reduce uncertainty and litigation, there are several unanswered questions and many like kind issues have been resolved on an ad hoc basis. The author traces the development of rules and standards, and suggests approaches that would lead to more logical results.
Internal Revenue Code Section 1034: Sale Of A Residence To A Related Corporation-A Viable Strategy?, Mary Tseng
Internal Revenue Code Section 1034: Sale Of A Residence To A Related Corporation-A Viable Strategy?, Mary Tseng
San Diego Law Review
This Comment examines the recent development of tax strategies by which a homeowner, desiring to sell his old principal residence but unable to do so because of a buyer's market, can over-come the two-year limitation period of Internal Revenue Code section 1034, by requiring the formation of a legitimate corporation to act as the buyer and the transfer of the homeowner's old principal residence to the newly formed corporation to be recognized as a sale. The author argues that the newly formed corporation is likely to be disregarded and, in the event that it is not disregarded, the transfer is …
Theft Of Employee Services Under The United States Penal Code, Ralph G. Picardi
Theft Of Employee Services Under The United States Penal Code, Ralph G. Picardi
San Diego Law Review
This Comment examines the judicial use of 18 U.S.C., Section 641, a penal code section designed to punish theft of money, property, and records of the United States Government, as a means to protect against the theft of employee services. The author argues that general theft statutes, such as section 641, are traditionally tied to legal concepts of property, and that the federal government possesses no property interest in the labor of its employees. The author concludes by recommending that courts strictly construe section 641 and that Congress develop a federal "theft of employee services" crime.
The Use Of Closed-Circuit Television Testimony In Child Sexual Abuse Cases: A Twentieth Century Solution To A Twentieth Century Problem, Steven M. Romanoff
The Use Of Closed-Circuit Television Testimony In Child Sexual Abuse Cases: A Twentieth Century Solution To A Twentieth Century Problem, Steven M. Romanoff
San Diego Law Review
This Comment examines California Penal Code section 1347, which allows the use of closed-circuit television to transmit the child witness' testimony to the courtroom from another location. The author addresses the various constitutional challenges that have been raised with respect to these types of statutes, with special focus on the argument that the use of closed-circuit television violates the Confrontation Clause of the sixth amendment and a defendant's due process rights. The author examines these constitutional issues and concludes that Penal Code section 1347 is consistent with the constitutional protections afforded by the Confrontation and Due Process Clauses.
The Bankruptcy Amendments And Federal Judgeship Act Of 1984: An Unconstitutional Vesting Of Subject Matter Jurisdiction, Sheldon A. Wilensky
The Bankruptcy Amendments And Federal Judgeship Act Of 1984: An Unconstitutional Vesting Of Subject Matter Jurisdiction, Sheldon A. Wilensky
San Diego Law Review
This Comment examines Congress' recent enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984, which removed the trial of a debtor who is also a defendant in a tort action to the federal district court from the state court in which the case is pending. The author uses the example of asbestosis litigation as a backdrop for their analysis. The author concludes that certain portions of the Act unconstitutionally expand federal subject matter jurisdiction in the bankruptcy context.
Barbed Wire In The Borderland: Statute Of Limitations Choices For Wrongful Discharge Claims, Mary E. Miller
Barbed Wire In The Borderland: Statute Of Limitations Choices For Wrongful Discharge Claims, Mary E. Miller
San Diego Law Review
This Article examines the relationship between the emerging law of wrongful discharge and the established doctrine of the statute of limitations. The author argues that with the recognition of the causes of action for wrongful discharge claims comes a need to examine secondary rules and policies of implementation, the important of which is the choice of appropriate statutes of limitations. The author examines the three exceptions to the at-will doctrine, and explores the typical range of limitations choices for each, with specific emphasis on California's statutory scheme. The author concludes by suggesting possible solutions, which seek to maximize the enforcement …
The Constitution, Original Intent, And Economic Rights, Robert H. Bork
The Constitution, Original Intent, And Economic Rights, Robert H. Bork
San Diego Law Review
This Article examines the subject of economic rights under the Constitution and the role that the Judiciary has taken in interpreting those rights. The author discusses the various stages of constitutional review which should be applied to the issue of economic rights, and argues that judges should move away from being legislators in this area and return to a more thorough examination of the Framer's intentions that underlie the Contract Clause and the Takings Clause.
Hospital And Blood Bank Liability To Patients Who Contract Aids Through Blood Transfusions, Robert C. Greif
Hospital And Blood Bank Liability To Patients Who Contract Aids Through Blood Transfusions, Robert C. Greif
San Diego Law Review
This Comment examines the possible theories of recovery available to persons who contract AIDS through blood transfusions. The author examines the medical and statistical data regarding AIDS and how this data may affect liability and recovery under the theories of negligence, strict products liability, and breach of implied warranty. The author concludes that negligence provides the only viable means of recovery for transfusion-infected persons.
The President's Veto Power: An Important Instrument Of Conflict In Our Constitutional System, Carl Mcgowan
The President's Veto Power: An Important Instrument Of Conflict In Our Constitutional System, Carl Mcgowan
San Diego Law Review
This Article analyzes the scope of presidential veto power. The author reviews the history and debate surrounding the design of the Veto Clauses, and highlights the veto's role in United States political and legal history. The author then examines the debate over the proper scope of the President's veto power, including recent judicial treatment of the pocket veto. The author argues that the veto power continues to play an important role in the separation of power scheme of our political system.
Foreword, Frank B. Swayze
Foreword, Frank B. Swayze
San Diego Law Review
The passage of time has not diminished the achievement represented by the United Nations Convention on the law of the Sea. History knows of no other international agreement of which so many states and varying constituencies have been represented. As one who participated, although comparatively briefly and certainly in a minor way, in the negotiations which culminated in the Convention, I welcome this opportunity to add a few personal thoughts to the Law of the Sea Symposium on the San Diego Law Review.
The Soviet Doctrine Of The Closed Sea, Joseph J. Darby
The Soviet Doctrine Of The Closed Sea, Joseph J. Darby
San Diego Law Review
This Article examines the Soviet Union's doctrine of the closed sea, under which the warships of all nonlittoral countries of certain designated peripheral seas would have no right to enter and navigate on those seas. The author analyzes the development of this doctrine and analyzes its application of this doctrine to the Black Sea, in light of recent historical developments and developments in the Law of the Sea.
Georges Bank--Common Ground Or Continued Battleground--Comparative Marine Resource Management And Environmental Assessment In The United States And Canada, Donna R. Christie
Georges Bank--Common Ground Or Continued Battleground--Comparative Marine Resource Management And Environmental Assessment In The United States And Canada, Donna R. Christie
San Diego Law Review
This Article examines the United States and Canadian legal frameworks for marine resource management in the area of the Bay of Fundy, Gulf of Maine, and Georges Bank. The author argues that, while the controversies between the United States and Canada concerning boundaries, fish, and transboundary environmental effects of energy development have existed for almost two centuries, current environmental problems are straining the relations between the two countries. The author presents a comparative analysis of the environmental assessment and the marine fisheries management and outer continental shelf development regimes of the United States and Canada, addresses the prospects for the …
United States Jurisdiction Over The 200-Mile Maritime Zone, Kathleen L. Walz, L. Poe Leggette
United States Jurisdiction Over The 200-Mile Maritime Zone, Kathleen L. Walz, L. Poe Leggette
San Diego Law Review
This Article examines the issue of the United State's exertion of jurisdiction over the continental shelf, with specific focus on the recent Department of Interior opinion, which provides that the Department has leasing authority with respect to the mineral resources of the "outer Continental Shelf," as defined by the Outer Continental Shelf Lands Act. The authors examine the two sources of law that determine the extent of United States jurisdiction and control over the seabed, customary international law and treaties and conventions binding upon the United States. The authors conclude that the United States' exercise of jurisdiction under this opinion …
The Management Function Of Ocean Boundaries, Kenneth P. Beauchamp
The Management Function Of Ocean Boundaries, Kenneth P. Beauchamp
San Diego Law Review
This Article discusses the nature of spatial and functional zones in the ocean, and their relation to the purposes of coastal-state and international jurisdictions. The author argues that advances in ocean technology, growing requirements for marine resources, and an increasing number of ocean users, have created the need for a functional and managerial approach to the exploitation of offshore resources and the use of ocean space. The author further argues that the boundaries which man has set in the ocean have generally inhibited such a development, because they carry with them an idea of separation or divisiveness, which has been …
Taming Troubled Waters: Joint Development Of Oil And Mineral Resources In Overlapping Claim Areas, Mark J. Valencia
Taming Troubled Waters: Joint Development Of Oil And Mineral Resources In Overlapping Claim Areas, Mark J. Valencia
San Diego Law Review
This Article examines the issues surrounding the joint development of resources in overlapping claim areas. The author reviews the precedents for joint development of offshore areas and seeks to define the elements that frequently appear in these precedents, namely the extent of the area, the contract type, the financial arrangements, the process of selection of concessionaires or operators, the length of the agreement, and the nature and functions of the joint management body. The author also examines the joint development efforts of various countries which share common claimed resources. The author argues that the success of joint development agreements depends …
Recent Developments In The Law Of The Sea 1984-1985, Ellen Moffat Fry
Recent Developments In The Law Of The Sea 1984-1985, Ellen Moffat Fry
San Diego Law Review
Nineteen eight-five witnessed additional ratifications of the United Nations Convention on the Law of the Sea, but the LOS Convention still has not received one-half of the number necessary to bring it into force. Some success was seen in boundary delimitations, fishing treaties, and pollution control, yet news events brought the grim realization that many issues, such as terrorism at sea, the conflict between nuclear-testing nations and those wishing to eliminate such testing, and constraints on the freedom of navigation, are far from resolved. Lastly, the discovery of the Titanic and the movement to designate it as a memorial, free …
Surviving The "Chubasco" Liability Of California Beach Communities For Natural Conditions Of Unimproved Public Property, Robert J. Gerard Jr.
Surviving The "Chubasco" Liability Of California Beach Communities For Natural Conditions Of Unimproved Public Property, Robert J. Gerard Jr.
San Diego Law Review
This Comment examines the issue of the liability of coastal communities for injuries resulting from natural conditions on public beaches. The author argues that Section 831.2 of the Tort Claims Act specifically provides governmental immunity for injuries caused by natural conditions of unimproved public property, but that recent judicial decisions have undermined this immunity in cases involving injuries that have occurred along California's coast. The author argues that the California legislature needs to intervene and reestablish the protection that section 831.2 was meant to provide to California's coastal communities.
Must The Foreign Sovereign Immunities Act Bar International Human Rights Claims, Denise Harbaugh
Must The Foreign Sovereign Immunities Act Bar International Human Rights Claims, Denise Harbaugh
San Diego Law Review
This Comment examines whether the Foreign Sovereign Immunities Act is amenable to the claims of alien victims of torture. The author concludes that doctrine of sovereign immunity will bar future judgments in favor of alien victims of torture. The author further discusses the policies that allow litigation of torture claims in United States courts and proposes an amendment to the Foreign Sovereign Immunities Act that would provide one of the few available means of redress for these victims of international human rights violations.
The Doctrine Of Historic Bays: Applying An Anachronism In The Alabama And Mississippi Boundary Case, James Michael Zimmerman
The Doctrine Of Historic Bays: Applying An Anachronism In The Alabama And Mississippi Boundary Case, James Michael Zimmerman
San Diego Law Review
This Comment examines the recent decision of the Supreme Court in the Alabama and Mississippi Boundary Case, in which the Court held that the Mississippi Sound was part of inland waters, and not the territorial sea. The author analyzes the historical development of the delimitation of bays and the development of the Submerged Lands Act. The author further discusses the application of the doctrine of historic bays to domestic disputes and argues that the Court's basis for its decision is questionable due to the imprecise nature of the doctrine.
International Environmental Law And Policy: An Overview Of Transboundary Pollution, John Warren Kindt
International Environmental Law And Policy: An Overview Of Transboundary Pollution, John Warren Kindt
San Diego Law Review
This Article provides an overview of several of the transboundary pollution issues affecting the Law of the Sea. The author argues that global pollution and transboundary pollution have historically been viewed from two major perspectives, namely from the land and from the ocean. The author suggests that more emphasis should be placed upon the ocean as the observational standpoint, because this standpoint is relatively unencumbered by pre-existing disputes involving land-based pollution. The author further argues that this oceanic standpoint also provides for fresh perspectives and allows for innovative policymaking to prevent, reduce, and control international pollution.
The Ninth Circuit And The Protection Of Asylum Seekers Since The Passage Of The Refugee Act Of 1980, Carolyn P. Blum
The Ninth Circuit And The Protection Of Asylum Seekers Since The Passage Of The Refugee Act Of 1980, Carolyn P. Blum
San Diego Law Review
This Article examines the Ninth Circuit Court of Appeal's decisions concerning the Refugee Act of 1980, with respect to its interpretation of the asylum and withholding of deportation provisions. The author provides an overview of the statutory language, and then reviews the Ninth Circuit's decisions on standard of proof, method of proof, and the five statutory bases which underlie any claim to asylum or withholding of deportation: race, religion, nationality, membership in a particular social group, and political opinion. The author further analyzes the court's interpretation of the term "persecution" under the asylum and withholding of deportation provisions. The author …
Foreword, Leon Wildes
Foreword, Leon Wildes
San Diego Law Review
As we proceed to celebrate the 100th Anniversary of the Statute of Liberty, it is appropriate that we pause to consider the direction which our immigration policy appears to be taking at this important juncture.