Law Commons^™

Medical Monitoring Funds: The Periodic Payment Of Future Medical Surveillance Expenses In Toxic Exposure Litigation, Amy B. Blumenberg

UC Law Journal

For many Americans, exposure to toxic substances has become a sad reality of life. While the medical and scientific communities have recognized the need for timely presymptom, postexposure medical diagnosis to detect and treat exposure-related diseases, the legal community has responded more slowly to the problems faced by toxic exposure victims. Nonetheless, the individual and public health interests in early detection and treatment of exposure-related diseases have motivated an increasing number of courts to recognize claims for presymptom, postexposure medical surveillance. In most such cases litigants have pursued or courts have awarded a traditional common-law lump sum of monetary damages. …

I Can't Believe I Taped The Whole Thing: The Case Against Vcrs That Zap Commercials, Steven S. Lubliner

UC Law Journal

In Japan, one may now purchase a VCR that can distinguish between the programming and the advertisements, with the result that commercials are not recorded. The threat to television advertising there has led to a standoff between manufacturers of such VCRs and the Tokyo Broadcasting System. Such a machine is not currently available in the United States, but its development is anticipated, and its arrival is being planned for by advertisers.

This Note assumes that VCRs with "automatic commercial avoidance" technology will be introduced in the United States and examines their legal significance in light of policies in the Federal …

Developing An Identity Of Responsible Lawyering Through Experiential Learning, Homer C. La Rue

UC Law Journal

Professor La Rue explores the use of student lawyering experiences in the development of a responsible professional identity. He shows how it is possible, through the selection of practice settings that situate students side-by-side with subordinated people, for students to understand law as a multidimensional enterprise. His goal is to help us understand law as a translation of human stories and to recognize how this translation involves value laden choices that have the effect of silencing certain voices.

The Practice/Theory Dilemma: Personal Reflections On The Louisiana Abortion Case, Ruth Colker

UC Law Journal

This Essay presents Professor Colker's experiences filing an amicus brief in Sojourner T. v. Roemer, the Louisiana Abortion case. She reflects on the difficulty of raising meaningful community support in the form of client sponsors for the brief. She also addresses the conflict between the desire to present the strongest legal and political arguments and the need to ensure that the brief be supported by as many community voices as possible. She examines both the problems she faced in compromising her legal argument to better represent potential clients' actual positions, and the pressure brought by other organizations trying to change …

On Truth And Shielding In Child Abuse Trials, Jean Montoya

UC Law Journal

Concern for the victims of child abuse has recently swept the nation. This popular mood has led most states and the federal government to enact legislation designed to protect abused children from the strain of testifying at the criminal trials of their assailants. Many of these statutes limit face-to-face confrontation between the witness and defendant, most commonly by using a live video transmission between the courtroom and the child's separate testimonial room. Of course, such procedures implicate a criminal defendant's Sixth Amendment right to confront adverse witnesses. The United States Supreme Court held in Maryland v. Craig that testimony by …

Balancing Ethical Imperatives And Political Constraints: The Dilemma Of New Democracies Confronting Past Human Rights Violations, Jose Zalaquett

UC Law Journal

Since the early 1980s, newly emerging democracies have been confronting the ethical and political dilemma of how to address a legacy of human rights violations committed by former governments. Unlike the circumstances surrounding the war crimes trials in the wake of World War II, when recently deposed rulers were powerless, in many contemporary political transitions the perpetrators of past abuses continue to wield considerable power. As new governments attempt to repair the damage caused by their predecessors and to prevent the recurrence of human rights violations, they must avoid provoking a backlash.

In his Lecture, Sefior Zalaquett argues that these …

The Golden State Of Labor Preemption: The Circuit Courts Have Gone Too Far, Tod A. Cochran

UC Law Journal

The doctrine of preemption is widely considered to be the most confusing area in labor law. In 1986, the Supreme Court changed the preemption playing field with its holding in Golden State Transit Corporation v. City of Los Angeles. Golden State and the circuit court interpretations of it expand the degree to which state and local actions are preempted by the National Labor Relations Act (NLRA). This Note argues that many of the circuit decisions have misinterpreted the Golden State doctrine in ways that expressly disadvantage workers and frustrate the principles of the NLRA.

A coherent analytical framework has yet …

The Policy In Favor Of Settlement In An Adversary System, Stephen Mcg. Bundy

UC Law Journal

In recent years the settlement of pending civil cases has become an avowed goal of federal judicial administration. This Article considers whether this new policy favoring settlement is justified and how the policy ought to be implemented. The new policy differs from prior settlement preferences in rejecting the assumption, basic to the adversary system, that represented parties' decisions to continue litigation generally serve both the parties' and the public interest.

This Article examines the premises of the policy favoring settlement in light of recent changes in federal litigation. Professor Bundy considers the private interest arguments in favor of settlement and …

Illicit Drugs In America: History, Impact On Women And Infants, And Treatment Strategies For Women, Stephen R. Kandall, Wendy Chavkin

UC Law Journal

Media and government alike speak of the "war on drugs" as if it were a new phenomenon. In fact, drug use and abuse have been recognized as significant social, legal, and medical issues in this country for well over a century. In this Article Drs. Kandall and Chavkin provide an overview of drug use in America, putting special emphasis on issues related to maternal drug use. The Article begins by briefly surveying the history of drugs in America. Next, the authors review the adverse medical outcomes associated with maternal drug use, which include increased infant morbidity and mortality. The discussion …

Entering Great America: Reflections On Race And The Convergence Of Progressive Legal Theory And Practice, Margaret M. Russell

UC Law Journal

The relatively recent development of jurisprudence and pedagogy in the areas of critical legal studies, feminism, and critical race theory presents significant opportunities for progressive practitioners and activists. In certain respects, the relationship between these emerging theories and practice is necessarily dialogic and interdependent: progressive lawyers and activists are recognizing with increasing frequency the extent to which creative and compassionate commitment to their work can engender valuable new visions of practice and pedagogy; critical scholars and teachers, in turn, are growing both more cognizant of and more explicit about the nexus between their work and lawyering for social change. Beyond …

Shared Interests: Promoting Healthy Births Without Sacrificing Women's Liberty, Dawn Johnsen

UC Law Journal

In recent years, legislatures, courts, and state prosecutors increasingly have sought to impose special restrictions on women who choose to bear children. While the government certainly has a legitimate interest in promoting the birth of healthier babies, the specific policies implemented in pursuit of this laudable goal pose a significant and growing threat to women's fundamental liberties. In this Article Ms. Johnsen examines the relative merit of two models of governmental action aimed at women: the adversarial model, which treats the woman and the fetus as distinct legal entities having adverse interests; and the facilitative model, which recognizes that women …

Chronic Drug Users As Parents, Judy Howard

UC Law Journal

In her Essay Dr. Howard presents a progressive overview of parental drug and alcohol abuse. The Essay surveys general trends in substance abuse, and discusses the chemically dependent lifestyle. Highlighting the disparity between children with developmental problems who are being raised in chemically dependent families and those growing up in families where substance abuse is not an issue, Dr. Howard explains how newborn behavior and developmental patterns of older children are influenced by environmental as well as biological factors. She concludes that comprehensive and coordinated services must be provided by those who work with chemically dependent families and suggests an …

Beyond Cut Flowers: Developing A Clinical Perspective On Critical Legal Theory, Phyllis Goldfarb

UC Law Journal

In her Essay Professor Goldfarb examines the relationship between clinical legal education and critical legal theory. She highlights the resemblances between the two movements while elaborating a clinical educator's perspective on and critique of some of the ideas associated with critical legal studies.

As the heirs to different versions of legal realism--critical legal studies being associated with "rule skepticism," and clinical legal education with "fact skepticism"-both are engaged in a project of theoretical deconstruction. For each the goal of this project is to generate a climate favorable to social change. Professor Goldfarb, however, argues that much of the cls perspective, …

Rebellious Lawyering, Regnant Lawyering, And Street-Level Bureaucracy, Paul R. Tremblay

UC Law Journal

Professor Tremblay's Essay addresses "rebellious" lawyering, that strain of lawyering which empowers clients. His Essay seeks to explore some of the institutional and ethical barriers that prevent easy implementation of this powerful and attractive view of lawyering. He describes two strands within rebellious lawyering literature: the "collectivist" theme, which argues that effective lawyering for the poor must include collective, organizing efforts that look beyond intrasystemic relief; and the "client voice" theme, which encourages collaborative, nonhierarchical participation by clients in their legal casework. While these two themes are present in much of the literature, he believes that in some ways they …

The Feminist Transformation Of Lawyering: A Response To Naomi Cahn, Ann Shalleck

UC Law Journal

Professor Cahn persuasively advocates movement beyond identifying as either male or female the different ways of being a lawyer. In her Essay Professor Shalleck explores further three aspects of the feminist transformation of lawyering suggested by Professor Cahn's article. First, despite Professor Cahn's title, a feminist critique of lawyering is not about "styles"; it is about the nature of the lawyer's actions and ways of understanding that activity. Second, the feminist project is not about simply expanding the available ways women and men can act and think as lawyers. This step neither creates new options nor develops effective challenges to …

The "Bad Mother" In Law And Literature: A Problem Of Representation, Marie Ashe

UC Law Journal

In her Article Professor Ashe explores the model of the "bad," or "unfit," mother in law and literature-the woman whose reckless or murderous behaviors threaten or destroy her children.

She argues that the "bad mother" archetype influences the legal practitioner and shapes the attorney-client relationship. She challenges prevailing interpretations of "zealous advocacy" and discusses the way in which the "bad mother" figure threatens the development of narrative theory. In attempting to address these problems, she explores Toni Morrison's refiguring of the "bad mother" in Beloved as subject, rather than object, of narrative. Professor Ashe suggests applying a similar practice of …

Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse In China, Janet E. Ainsworth

UC Law Journal

The 1982 Constitution of the People's Republic of China provides the foundation for a nation governed by the rule of law rather than by Party fiat. It remains unclear whether and to what extent this ambitious Constitution will be implemented in practice. In her Article, Professor Ainsworth asserts that the way in which Western scholars to date have analyzed Chinese constitutions demonstrates the ethnocentric assumptions inherent in Western scholarship.

Professor Ainsworth suggests that Chinese constitutional discourse needs to be understood in a Chinese context, requiring a historical study of the traditional Chinese exegetical methodology used in interpreting the Confucian Classics. …

Nonretroactivity In Constitutional Tax Refund Cases, Carl D. Ciochon

UC Law Journal

A recent series of cases decided by the United States Supreme Court point out a classic conflict between individual rights and state interests. The cases revolve around a simple question-whether a state will be required to refund monies collected under an unconstitutional taxing scheme. While the question itself is straightforward, the Court's current approach is characterized by conflict and uncertainty. In McKesson v. Division of Alcoholic Beverages & Tobacco, it declared unanimously that the Due Process Clause of the Fourteenth Amendment requires the states to provide meaningful backward looking relief for any unconstitutional deprivation. But McKesson's seemingly clear mandate leads …

The Bendectin Litigation: A Case Study In The Life Cycle Of Mass Torts, Joseph Sanders

UC Law Journal

Mass torts are more than simple groupings of similar, but independent products liability suits; rather, they involve "congregations" of cases that may be profitably analyzed as units. In this Article, Professor Sanders examines the Bendectin litigation from the case congregation perspective. The key question in the Bendectin Cases has been the causation issue--does Bendectin actually cause birth defects? Consequently, Professor Sanders looks at more than just law; he also examines the scientific studies of Bendectin. The examination reveals that, like the cases, these studies have evolved over time. And from an even broader perspective, he illustrates how the law and …

Sex, Drugs, Pregnancy, And The Law: Rethinking The Problems Of Pregnant Women Who Use Drugs, Michelle Oberman

UC Law Journal

The media portray the pregnant drug user as a betrayer whose interests are diametrically opposed to those of her fetus and who will harm her fetus unless stopped by the state. In her Article Professor Oberman restructures the stories of pregnant addicts, describing some of the contextual factors that shape their lives and looking at issues such as why women users get pregnant and how they can be persuaded to curtail drug use during and after pregnancy. The Article then focuses on the application of child abuse and neglect laws to pregnant drug users, and demonstrates how these laws violate …

Perinatal Substance Abuse: Personal Triumphs And Tragedies, Nancy Ruhle

UC Law Journal

The problem of perinatal substance abuse is one of complexity, dilemma, and disturbance for the various professionals involved. To resolve the problem, Ms. Ruble argues, we must understand the nature of addiction and become intimately familiar with the experiences of the real women and children involved. From the perspective of a public health nurse, Ms. Ruhle narrates the stories of a sampling of her substance abusing clients and their children. In doing so, she illustrates the complexity of the problem and provides a human context within which to discuss the problem of perinatal substance abuse.

The Prosecutor's Role In Solving The Problems Of Prenatal Drug Use And Substance Abused Children, Paul A. Logli

UC Law Journal

In this Essay Mr. Logli discusses the prosecutor's role in solving the problem of perinatal substance abuse. He notes at the outset that prosecutors cannot avoid involvement in this issue because of both the political pressure to respond and their legal duty to prevent child abuse. Given the mixed results of prosecutions to date, new legislation is required to increase prosecutors' ability to protect children at risk from parental substance abuse. However, coercive state action can play a productive role in addressing this problem only if pursued in conjunction with more supportive government policies. Therefore, Mr. Logli advocates a multidisciplinary …

Paradox, Piece-Work, And Patience, Lucie White

UC Law Journal

In her Comment on an earlier essay of Professor Alfieri's, Professor White emphasizes the dangers of attempting to impose independently derived theoretical insights upon the practice of poverty lawyers. Noting the unavoidable partiality of any vantage point, be it grounded in the concrete or the abstract, she warns that an intellectually formal approach to reconstructive practice cannot help but falsify its vision of reality. In particular, she analyzes the flaws in attempting to make a neat distinction between "interpretive" violence and "real" violence. In place of such cleanly conceptual reconstruction, Professor White urges a slower, more dialogic, workaday approach--one that …

Disabled Clients, Disabling Lawyers, Anthony V. Alfieri

UC Law Journal

People with disabilities, especially the impoverished among them, have long been the object of legal advocacy. In the rush of advocacy, lawyers have forgotten that the concept of the disabled, like the concept of the poor, is an artifact of American law and society. It is a thing mediated through ideals and discourses, a thing constructed rather than naturally or necessarily given. The social construction of disability occurs in the daily practices of advocacy, administration, and adjudication. These material practices form the dominant and subordinate visions of the disabled.

The dominant vision of the disabled conjures images of dependence, incompetence, …

Poverty Law Narratives: The Critical Practice And Theory Of Receiving And Translating Client Stories, Christopher P. Gilkerson

UC Law Journal

In critical exploration of the dissonance between the law, lawyers, and the disempowered, recent inquiries have given rise to new, enriched theories about the knowledge and discourse of the poverty lawyer. Critical scholars and practitioners are engaged in a search for theoretical and practical approaches to working for and with clients who have perspectives, needs, values, and differences that do not fit neatly into traditional conceptions of legal process and doctrine. This Article undertakes a "critical storytelling approach" to poverty law and practice.

Drawing upon critical theory, including feminist and critical race, as well as law and literature scholarship and …

A Meditation On The Theoretics Of Practice, Robert D. Dinerstein

UC Law Journal

Professor Dinerstein's Essay examines the value and liabilities of the theoretics of practice movement. He tells the tale of a criminal case his clinic handled in which the client insisted on telling an inculpatory story. Tracing the twists of the story and noting the advocates' practices of client-centered counseling and sensitivity to concerns raised by narrative theory, he points out the unpredictable impact of such theories about practice when actually applied.

He criticizes the inaccessibility of much of the theoretics literature and questions the utility of much of it for those who actually practice law. He calls for critical examination …

Empathy And Approval, Stephen Ellmann

UC Law Journal

Professor Ellmann's Essay suggests that the positive judgment latent in empathy need not remain so veiled. On the contrary, clients often need, and lawyers should be able to offer, a more wholehearted confirmation of client feelings-a positive judgment and endorsement, of part or all of the client's world view, that he calls approvaL The functions of such explicit approval are somewhat different from, and potentially inconsistent with, those of empathy. Lawyers can effectively make use of both these techniques, but they are not interchangeable, and a recognition of the potential value of approval not only adds a technique to lawyers' …

Styles Of Lawyering, Naomi R. Cahn

UC Law Journal

In her Article, Professor Cahn explores issues concerning the identification of male and female styles of lawyering. She first examines the elements of what some might label a female style of lawyering-that is, one based on an ethic of care. She then critiques this model and its underlying assumptions. Rather than identifying as female one particular style of lawyering, she believes that many different styles of lawyering exist, and that using feminist legal theory helps uncover these styles, figure out when they are useful in litigation, and how they can help transform litigation.

Professor Cahn also examines the role in …

Feminist Theory And Legal Practice: A Case Study On Unemployment Compensation Benefits And The Male Norm, Deborah Maranville

UC Law Journal

This Essay explores the application of two key insights of feminist theory to practice. First, the law is often structured to fit male life patterns in a way that creates unstated male norms which are mistaken as inevitable or natural. Second, these male norms often disadvantage women. A recent unemployment compensation case handled in the University of Washington Civil Law Clinic illustrates these insights.

The clinic challenged the denial of unemployment benefits to a client who sought only part-time work so she could care for her special needs child. Initially, feminist theory provided a basis for recognizing and challenging the …

Being A Teacher, Of Lawyers: Discerning The Theory Of My Practice, Howard Lesnick

UC Law Journal

The prevalent notion of teaching is that what teachers are doing is transmitting some of their acquired knowledge and skills, which will be useful to students in their careers. This approach is woefully deficient in several important ways. Most fundamentally, it uses people to teach things, rather than using things to teach people. Professor Lesnick thinks of teaching as bringing out something that is latent in the student, rather than putting in something he or she lacks. To do that, teachers must put more of themselves into their engagement with the subject matter of their teaching. At the same time, …