Law Commons^™

Fair Use And Privatization In Copyright, Stephen M. Mcjohn

San Diego Law Review

The Internet has spurred a debate over whether the fair use doctrine of copyright should be narrowed. This article argues against narrowing. Advocates of a market approach to copyright argue that the fair use doctrine is confusing, inefficient, and unjust to producers, amounting to "a compulsory license provision with a royalty of zero." Many argue that real property rules may apply well to copyright issues. In contrast, the author illustrates differences between real and intellectual property, and advocates a "balancing view." This approach would achieve strong protection for copyrightable aspects of an intellectual product without unfairly limiting the use of …

Racial Disparities In The Delivery Of Health Care, Barbara A. Noah

San Diego Law Review

This article focuses on the role of conscious and unconscious bias in the delivery of health care. Racial disparities of a range of health care services are illustrated, including drug therapy, Medicare services, and organ transplantation. Methodological challenges to measuring such disparities are also addressed, as are sociological factors influencing disparities. Statutory and constitutional remedies are suggested to redress inequities. The author concludes, however, prospective approaches, such as regulation and education, are the most promising avenues to solving racial disparities in health care delivery.

The Uncopyrightability Of Jokes, Allen D. Madison

San Diego Law Review

A joke consists of a setup, a premise, and a punch line. It is likely that jokes can be copyrighted under existing laws. However, several facts leave comedians to protect themselves by private means. First, the registration fee for copyright precludes most comedians from registering their jokes. More importantly, this article suggests, the scenes a faire doctrine may prevent comedians from effectively protecting the most important part of jokes the punch line. To make the law more clear, the author recommends a simple addition of jokes to the enumerated list of protected material in the Copyright Acts. Although this change …

Politics And Plurality In A Lawyer's Choice Of Clients: The Case Of Stropnicky V. Nathanson, Steve Berenson

San Diego Law Review

In attempting to ensure equal access to public goods, the law of public accommodation treats private, commercial, and political associations under different standards. Using Stropnicky v. Nathanson, this article analyzes a claimant's interest of equal access to an attorney against an attorney's freedom of association. Attorney Nathanson was sanctioned for refusing to provide representation to Mr. Stropnicky. The policy of Nathanson's law practice, however, was to not represent male clients in divorce proceedings. The author argues that her policy should be considered as political, rather than commercial, activity and accorded greater deference than applied by the U.S. Supreme Court. The …

V.35-1, 1998 Masthead

San Diego Law Review

No abstract provided.

Internet Copyright Infringement And Service Providers: The Case For A Negotiated Rulemaking Alternative, Timothy L. Skelton

San Diego Law Review

The Internet has dramatically increased the ease of copyright infringement. A popular proposal recommends that Internet service providers (ISP) be held liable for the harms, including copyright infringements, of their users. ISPs reject this approach, warning that it will hamper the expansion of the Internet. This article recommends a regulatory approach to ISP liability for copyright infringement. A technical introduction to the Internet is given, pointing to difficulties that courts have had navigating this conceptually new and complex subject. Arguments in favor or strict liability of ISPs are presented, with an analysis of their likely economic and social consequences. The …

The Effect Of The Indian Gaming Regulatory Act On California Native American's Independence, Gregory Elvine-Kreis

San Diego Law Review

This article argues that the "Indian Gaming Regulatory Act (IGRA) has comprised and is in contradiction to the relationship between the United States government and the Native American tribes of California." The policies of the Act undermine the principle that Native American tribes be treated as sovereign nations. Arguments from precedent and history are marshaled to illustrate contradiction in IGRA decisions. A history of California's Native American tribes, their prospect for economic self-sufficiency, and the current importance of their gaming industry is offered. The author concludes with a plea to California voters to turn jurisdiction over Native American tribes granted …

People Ex Rel. Gallo V. Acuna: Pulling In The Nets On Criminal Street Gangs, Edson Mcclellan

San Diego Law Review

In response to rising gang-related crime, California passed in 1988 the Street Terrorism and Prevention (STEP) Act. Among the tools it provides to prosecutors is civil injunction of gang behavior: a prosecutor may enjoin a range of otherwise legal conduct as well as conduct that is independently proscribed by the Penal Code. The first appellate challenge was People ex rel. Gallo v. Acuna, handed down April, 1995. The court modified slightly the terms of STEP to avoid vagueness and overbreadth and commanded that to bind a defendant to an anti-gang injunction "there must be some personal, individual participation" in the …

The Case For Borrowing A Limitations Period For Deemed-Denial Suits Brought Pursuant To The Federal Tort Claims Act, Ugo Colella

San Diego Law Review

No abstract provided.

Personal Jurisdiction And The Internet Quagmire: Amputating Judicially Created Long-Arms

San Diego Law Review

This Comment will explore the expanding power courts have given the word “haled” and its relationship to computer communication: a relationship that is confusing, contradictory, and sometimes downright troubling. Personal jurisdiction via the internet is a rapidly expanding area of American jurisprudence that has developed, and is developing, in response to the explosive growth of computer communications. While the hypothetical internet disclaimer contained above could be viewed as little more than unsubstantiated fears of the legally paranoid, in the future it may be the disclaimer of the legally prudent.

Threshold Order: Bilateral Law Enforcement And Regional Public Safety On The U.S./Mexico Border, Alan D. Bersin

San Diego Law Review

The Mexican/United States border region presents a study in contrast and ambivalence in both countries as well as between them. The border marks the collision of international boundaries--the beginning and end of nations as well as a merger of them. It composes a binational corridor and channel where currents of free trade, family ties, migration, cultural exchange, illegal firearms, and drug trafficking boil most actively in tandem. Cross-border perspectives and organizations that promote and share a sense of regional identity are, therefore, increasingly essential to a satisfactory working relationship between the United States and Mexico.

Gagging Physicians: Is That What The Legislature Intended?

San Diego Law Review

In 1996, the California legislature took steps to modify existing contractual relationships between physicians and managed care organizations (“MCOs”).Legislative action was prompted by skyrocketing medical malpractice verdicts, cries from physicians about unfair treatment caused by new payment systems, and media hysteria. Regardless of which straw broke the proverbial camel’s back, the result was no fewer than four bills that promise to forever change health care in California.

Pretrial Detention In The Ninth Circuit, Thomas Bak

San Diego Law Review

In 1992, the Judicial Conference of the United States ("JCUS") adopted a resolution encouraging the examination of bias based on race, ethnicity, gender, age and disability in the federal judiciary. The Ninth Circuit responded to the JCUS resolution with a study of gender bias, completed in 1993.2 Subsequently, the Ninth Circuit Judicial Conference authorized a second study, establishing the Task Force on Racial, Religious, and Ethnic Fairness in 1993.' This study of pretrial detention in the Ninth Circuit was undertaken as part of the research commissioned by the Task Force.

Exiling The New Felons: The Consequences Of The Retroactive Application Of Aggravated Felony Convictions To Lawful Permanent Residents

San Diego Law Review

Aliens who commit serious crimes must undoubtedly be deported. American citizens need neither endure the atrocities committed by alien terrorists nor continue to subsidize the unstoppable river of illegal aliens flowing across the borders. Today, over four million illegal aliens live in the United States; at least a quarter of a million more undocumented aliens enter this country each year,' contributing to the serious immigration problems suffered by the United States. Though the concerns raised by immigration policies have periodically surfaced during the last few decades, both legal immigrants and illegal aliens were largely ignored or tolerated during much of …

California’S Unpredictable Res Judicata (Claim Preclusion) Doctrine, Walter W. Heiser

San Diego Law Review

The doctrine of res judicata describes a set of rules that determine the preclusive effects of a final judgment on the merits. The California doctrine has two familiar components: a primary aspect, “res judicata” or claim preclusion; and a secondary aspect, “collateral estoppel” or issue preclusion. Under the claim preclusion aspect, a prior judgment bars the parties (or those in privity with them) from relitigating the “same cause of action” in a subsequent proceeding. Under the issue preclusion aspect, although a second suit between the same parties on a different cause of action is not precluded by a prior judgment, …

Border Cooperation: The Tijuana/ San Diego Region—A Three Models Case Study, Luis Herrera-Lasso

San Diego Law Review

In the 20th century we have witnessed many changes in the world system. There has been an unpredictable increase in the world population coupled with the emergence of the most unthinkable means of massive destruction. The daily interaction among people and economies have reached almost a point of no return and the pace of technological progress seems almost out of control. The main challenge for international cooperation in this new age is to face threats that have no respect for political boundaries, ethnicity, religions, paradigms or philosophical approaches.

Extraterritorial Application Of Antitrust Laws And The U.S.-Eu Dispute Over The Boeing And Mcdonnell Douglas Merger: From Comity To Conflict? An Argument For A Binding International Agreement On Antitrust Enforcement And Dispute Resolution

San Diego Law Review

Due to the increase of "mega-mergers" between corporations trying to compete in the global economy, cross-border regulation of mergers and acquisitions by both the United States and the European Union has become much more common. 5 Until recently, such reviews and regulatory acts by foreign regulators only rarely caused trade disputes or tensions in diplomatic relations.' In order to maintain cooperation and prevent serious disputes over regulation of each other's domestic corporations, the United States and the European Union entered into an agreement on the application of antitrust laws in 1991.

Dual Nationality For Mexicans, Jorge A. Vargas

San Diego Law Review

In 1995, the government of Mexico began seriously to consider amending its Constitution to allow for dual nationality, whereby a Mexican could be recognized as holding two nationalities at the same time. Legally, the concept prohibits Mexican nationals from voluntarily abandoning their nationality, even if they opt to become naturalized citizens of another country. Two questions arise as one considers dual nationality in Mexico. First, what has really influenced the philosophical change in Mexico regarding dual nationality? Second, why has Mexico started considering dual nationality now?

Patient Advocates Or Patient Adversaries? Using Fiduciary Law To Compel Disclosure Of Managed Care Financial Incentives, Kim Johnston

San Diego Law Review

This Article advocates disclosure as a compromise between wholeheartedly embracing financial incentives and flatly prohibiting them, and suggests using fiduciary law to compel such disclosure. This Article also argues that courts should recognize a cause of action for breach of fiduciary duty when a physician fails to disclose managed care financial incentives to her patients. Part I gives a brief overview of fiduciary law and fiduciary duties. Part II examines the fiduciary nature of the physician-patient relationship and looks at court cases that have characterized the physician-patient relationship as a fiduciary relationship. Part Ill discusses the only two published opinions …

Reevaluating The Food And Drug Administration's Stand On Labeling Genetically Engineered Foods

San Diego Law Review

This Comment argues that the FDA must reconsider its position on the labeling of genetically engineered foods. There is no doubt that genetic engineering of food promises a number of significant benefits to both the consumer and the farmer, and has become a permanent part of the food supply. But recent research points out that these benefits do not come without significant risks, both to the consumer and to the environment. A federal requirement that genetically engineered foods be labeled as such is a necessary step to promote confidence in the American consumer in the face of unease over these …

Reimbursing Insurers’ Defense Costs: Restitution And Mixed Actions, Douglas R. Richmond

San Diego Law Review

The pejorative “Indian giver” describes a person who, having given a gift to another, takes it back or demands its return. This childhood insult arguably has surfaced in the law of liability insurance. A liability insurer that provides its insured with a defense to a lawsuit, but that later seeks to recover from the insured the costs associated with the defense of uncovered claims, might be described by the insured or by an insensitive court as an Indian giver. Having promised to defend its insured even against suits that are “groundless, false or fraudulent," an insurer that later seeks the …

California’S Confusing Collateral Estoppel (Issue Preclusion) Doctrine, Walter W. Heiser

San Diego Law Review

This Article discusses two related problems regarding the scope of the collateral estoppel doctrine applied by the California courts. Both problems concern the determination of whether issues were “actually litigated and determined” by a prior judgment. Both implicate the tension between the desire to achieve judicial economy on the one hand, and the right of a party to a fair opportunity for a full adversary hearing on an issue on the other. The next section of Part I examines the policies underlying the preclusion doctrines, and explains how clear issue preclusion rules applied in an underinclusive manner further these policies. …

Financing Cross-Border Businesses And Access To U.S. Capital Markets, Thomas M. Shoesmith

San Diego Law Review

Since the devaluation in Mexico several years ago, businesses have increasingly needed money both to finance ongoing operations and to finance expansion to acquire more businesses. Currently, cross-border businesses are booming, especially in the maquiladora industries. These businesses often confront difficulty in acquiring financing for Mexican operations because equity in these businesses is generally low and interest rates on domestically borrowed funds are exceptionally high. As a result, U.S. businesses and lenders are often confronted with opportunities requiring cross-border financing and must be aware of the security devices that are currently available.

Why I Am A Lawyer, Joseph L. Daly

San Diego Law Review

With so little honor associated with the law profession these days, one must wonder why any person aspiring to do something respectable with her or his life7 would choose to be a lawyer.8 To become a lawyer today, students must have a firm desire to be an attorney and a steadfast willingness to accept social opprobrium.9

The Economic Impact Of International Trade On San Diego And The Application Of The United Nations Convention On The International Sales Of Goods To San Diego/Tijuana Commercial Transactions, Ernesto Grijalva, Alexander Imberg

San Diego Law Review

Opponents of the North American Free Trade Agreement ("NAFTA"), were they to take a look, would find the current performance of San Diego's economy antithetical to their economic theories, San Diego is conspicuously lacking the net job loss that free trade opponents were forecasting as the inevitable result of NAFTA. In his book, Save Your Job, Save Our Country: Why NAFTA Must Be Stopped – Now!, Ross Perot, the most prolific NAFTA basher, proclaimed that the economic strength of our entire nation would be jeopardized by NAFTA.' Four and one-half years later, we find that the United States is enjoying …

The Helms-Burton Act: Is The U.S. Shooting Itself In The Foot?

San Diego Law Review

The United States' tool of choice to further its foreign policy goals appears to be economic sanctions. Since 1993, the United States has increasingly applied economic sanctions to further its foreign trade policy. Specifically, more than one-half of the sanctions imposed in the past eighty years have been imposed in only the past four years. The frequent use of economic sanctions has angered and discouraged our allies while significantly weakening the United States' national interests. With so many countries under sanctions, the efficacy of using economic sanctions to promote the United States' foreign policy has been called into question. Suffering …

Harmonizing The Mexican Tax System With The Goals Of The North American Free Trade Agreement (Nafta), Mauricio Monroy

San Diego Law Review

Prior to the North American Free Trade Agreement (NAFTA), the international tax provisions of the Mexican tax system were in harmony with the then protectionist environment of Mexican trade. The system was characterized by high withholding taxes on the repatriation of profits (i.e., payments from Mexico to parties abroad), frequently at 21 to 35 percent, and high duties on the importation of goods. It was not abnormal to find duties of 100% ad valorem.

Foreign Investment In Mexico's Real Estate: An Introduction To Legal Aspects Of Real Estate Transactions, Manuel Pasero, Hector Torres

San Diego Law Review

During the past ten years, and since the deregulation in most sectors of the Mexican economy, real estate investments increased considerably. Possibly, one of the reasons why people's interest has turned to Mexico is the thousands of miles along the border and seashores that still have not been developed. Whatever the interest of a foreign individual or corporation might be, Mexico is now offering a variety of investment opportunities in the real estate field. Touristry, recreational, industrial, commercial, and even residential purposes are attracting foreign investment in the Mexican real estate market, representing a substantial

portion of the foreign capital …

Amalgam In The Americas: A Law School Curriculum For Free Markets And Open Borders, Mark A. Drumbl

San Diego Law Review

This Article addresses this lacuna by investigating ways in which the American and Canadian common law curriculum could become more responsive to the changing realities of legal practice under NAFTA.

Potentially the following modifications could be introduced on a gradual basis: 1. Introduction of a course to familiarize common law lawyers with the method, principles and practice of civil law, with a directed focus on Mexico; 2. Initiation of a broader NAFTA curriculum, potentially leading to a certificate or designation; and 3. Development of a new law degree, universally recognized in all three NAFTA jurisdictions as a prerequisite to bar …