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Full-Text Articles in Law
The Effects Of Eisen Iv And Proposed Amendments Of Federal Rule 23, Sidney B. Jacoby, Michael G. Cherkasky
The Effects Of Eisen Iv And Proposed Amendments Of Federal Rule 23, Sidney B. Jacoby, Michael G. Cherkasky
San Diego Law Review
This Article was written for the purpose of revitalizing Rule 23 (b) (3) class actions following the rulings of Snyder, Zahn and especially Eisen IV. These three Supreme Court opinions were analyzed carefully in order to determine whether such effort is possible without any constitutional amendment. The principal innovation of the "spurious" class action in 1966 was the rule that, while formerly class members had to take affirmative steps to participate in the class, now they are bound by the class action unless they opt out. In the authors' view, this 1966 change of policy was sound, especially in the …
Defining A Rule 23(B)(2) Class: An Expository Analysis, Jan Goldsmith
Defining A Rule 23(B)(2) Class: An Expository Analysis, Jan Goldsmith
San Diego Law Review
In the summer of 1973 Cairo, Illinois was boiling with racial conflict. Since the early 1960s, black citizens of Cairo, together with a small number of white persons on their behalf, had been actively seeking equality of opportunity and treatment. Apparent failure resulted in an economic boycott of city merchants who allegedly engaged in racial discrimination. Tension and antagonism among the white citizens and officials of Cairo rose, eventually arrests were made, and the criminal justice system became the center of controversy. On October 17, 1973 certain black and white residents of Cairo, having brought a class action, argued in …
Ethical Obligations Of The Attorney Under Rule 23--Abuses And Reforms, Brian G. Rix
Ethical Obligations Of The Attorney Under Rule 23--Abuses And Reforms, Brian G. Rix
San Diego Law Review
This Comment will examine the ethical problems which have arisen as a result of the maintenance of class actions under Federal Rule 23, and will discuss the effect of a breach of ethics by the attorney on the members of the class. The specific problems to be considered are those of claim solicitation, attorney's fees, problems involved in the dismissal or compromise of class actions, and some of the ethical questions involved in adequate representation of the class.
The Consumer Class Action: An Endangered Species, Peter H. Schuck, Marsha N. Cohen
The Consumer Class Action: An Endangered Species, Peter H. Schuck, Marsha N. Cohen
San Diego Law Review
In 1967, Judge Marvin Frankel of the United States District Court for Southern District of New York said of the then newly revised federal class action rule, Fed. R. Civ. P. 23, that it "tends to ask more questions than it answers." Professor Benjamin Kaplan, reporter for the new civil rules, predicted that generation or so would pass before the scope, the virtues, and the vices of the new Rule 23 would be fully appreciated. But the 1973-74 Supreme Court term, with its significant class action decisions, has accelerated that process. Now, only eight years later, we know that revised …
Under The Portcullis And Inside The Golden Castle: American Pipe & Construction Co. V. Utah, Douglas C. Holland
Under The Portcullis And Inside The Golden Castle: American Pipe & Construction Co. V. Utah, Douglas C. Holland
San Diego Law Review
This Comment discusses to what extent the commencement of a class suit tolls the statute of limitations for the benefit of unnamed or absent members of the class who would have been barred by the statute of limitations from instituting their own individual suits. American Pipe & Construction Co. v. Utah is a recent United States Supreme Court decision that recites and establishes a confluent rationale for tolling the statute of limitations, under purportedly limited and narrow circumstances, for the benefit of all asserted members of the class upon the commencement of the class suit.
The Progressive Transformation Of Class Actions In California, Marco A. Famiglietti
The Progressive Transformation Of Class Actions In California, Marco A. Famiglietti
San Diego Law Review
This Comment traces the evolution of class actions in California, from 1850 to the present. The progressive transformation of judicial response the class actions, from procedural the remedial, will be discussed.
Zahn V. International Paper: Taking The Action Out Of Class Action, Or Can Zahn Be Avoided?, Richard P. Berg
Zahn V. International Paper: Taking The Action Out Of Class Action, Or Can Zahn Be Avoided?, Richard P. Berg
San Diego Law Review
The Supreme Court's decision last term in Zahn v. International Paper Co. was greeted in the news media with prophecies of doom for class actions brought in federal court. Though the media's concern was earnest, upon closer inspection, Zahn does not nearly have such a virulent effect. There is little doubt, however, that Zahn will be a serious hurdle to many class action litigants in federal court.
Foreword, James Wm. Moore
Foreword, James Wm. Moore
San Diego Law Review
This Symposium concerns only one civil rule ? Rule 23 Class Actions; and is primarily limited to the old spurious class action as renovated in (b)(3). Rule 23 warrants symposium treatment. No other civil rule does.
Challenging Certification Of A Class Action: A Hypothetical, Robert G. Cutler, James P. Feeney
Challenging Certification Of A Class Action: A Hypothetical, Robert G. Cutler, James P. Feeney
San Diego Law Review
This is intended to be an article for the lawyer whose client is suddenly confronted with one of these "Frankenstein monster(s) posing as a class action. Our objective is to set forth the arguments and methods available to counsel in seeking to prevent a class from being certified. In order to sharpen the analysis and arguments we will use a hypothetical class action as a model. Since most of the criticism and praise of the class action device has been focused on complaints filed under section (b)(3), observations will be directed primarily at that part of Rule 23. If, in …
Is The Citizen Suit A Substitute For The Class Action In Environmental Litigation? An Examination Of The Clean Air Act Of 1970 Citizen Suit Provision, Gabriel N. Steinberg
Is The Citizen Suit A Substitute For The Class Action In Environmental Litigation? An Examination Of The Clean Air Act Of 1970 Citizen Suit Provision, Gabriel N. Steinberg
San Diego Law Review
This Article attempts to show that the proper lawsuit may be a citizen suit action utilizing section 304 of the Clean Air Act. It points out similar provisions in other federal environmental legislation, and discusses several cases brought to implement the National Environmental Policy Act. Finally, it shows that the environmental class action has been limited by the Zahn and Eisen cases.
Sister Union Strikes And "No Strike" Clauses: The Logic And Necessity Of A Presumption Of Inclusivity, John S. Adler
Sister Union Strikes And "No Strike" Clauses: The Logic And Necessity Of A Presumption Of Inclusivity, John S. Adler
San Diego Law Review
This Comment examines the problem of sister union strikes and the potential it has of occurring in the private sector any time two distinct bargaining units work side by side. The problem is complicated further when one bargaining unit is under a collective bargaining agreement containing a no-strike clause. This Comment discusses various theoretical approaches to this problem and examines the unique legal background of this issue.
The Exclusionary Rule And Police Perjury, Charles M. Sevilla, Herbert Edelhertz
The Exclusionary Rule And Police Perjury, Charles M. Sevilla, Herbert Edelhertz
San Diego Law Review
This Article examines the legitimacy of the criticism of the Fourth Amendment exclusionary rule. In doing so, a general theme will emerge: the exclusionary rule is a benevolent concept crippled by police perjury and judicial hostility and seen as deserving a mercy killing by those who never wanted to give it life. It is the intent of this Article to explore the extent to which police perjury and judicial hostility have crippled the purpose and effect of the Fourth Amendment exclusionary rule. The conclusion will provide suggestions which, if implemented, could breathe new life into a beleaguered Fourth Amendment.
Equal Management And Control Under Senate Bill 569: "To Have And To Hold" Takes On New Meaning In California, John A. Adamske
Equal Management And Control Under Senate Bill 569: "To Have And To Hold" Takes On New Meaning In California, John A. Adamske
San Diego Law Review
This Comment examines the progressive step the California legislature took in 1973 by amending the California community property laws to give equal management and control over the martial community property to both spouses. Several changes were made which will alter the legal relationship between spouses concerning the community and separate property interests of each spouse; between spouses and their creditors in credit transactions; and between spouses and third party claimants in certain tort actions. The purpose of this Comment to isolate and analyzes the direct and indirect ramifications of some of the changes made to the Civil Code and to …
California's New Crime Victim Compensation Statute, Gilbert Geis
California's New Crime Victim Compensation Statute, Gilbert Geis
San Diego Law Review
This Article examines the 1965 California state crime victim compensation statute and the new program (effective July 1, 1974) which will provide public funds for certain victims of violent crime. The Article focuses on how the new legislation seeks to update, expand and clarify the statute.
The 1973 Obscenity-Pornography Decisions: Analysis, Impact, And Legislative Alternatives, David M. Hunsaker
The 1973 Obscenity-Pornography Decisions: Analysis, Impact, And Legislative Alternatives, David M. Hunsaker
San Diego Law Review
The purpose of this Article is to examine critically the rationale of those decisions and to assess their actual and potential impact. An exhaustive review of the history of obscenity in the courts is not contemplated nor necessary. Abler attempts at comprehensive treatment have, on occasion, been performed by members of the Court, as well as by scholars in the field. Constitutional history will be employed only insofar as it has a direct bearing upon the new guidelines announced by the Court and what one can expect from their subsequent application.
Of Rights And Reinforcers, David B. Wexler
Of Rights And Reinforcers, David B. Wexler
San Diego Law Review
This Article is directed at the intersection between the law and those behavior modification techniques which are clinical applications of Skinnerian principles of learning theory or reinforcement theory. The author has written previously on this subject and it is his hope in the present Article to capsulize and update the previous work, to highlight certain new themes and developments, and to furnish some recent references.
Local Control Of Pollution From Federal Facilities, Jacklyn Becker
Local Control Of Pollution From Federal Facilities, Jacklyn Becker
San Diego Law Review
The purpose of this Comment is to examine the three congressional acts relating to air, water and noise pollution and their legislative history in an attempt to determine the mandated scope of federal agency compliance with local pollution regulations. In view of the fact that the Clean Air Act provision relating to control of pollution from federal facilities was the first such provision and apparently the prototype of the provisions on the noise and water pollution control acts, major emphasis will be placed on it. It is the author's belief that: (1) the complementary nature of the three acts and …
Incarceration For Civil Contempt: An Asserted Eighth Amendment Challenge Faces A Semantical Defense, Seth J. Kelsey
Incarceration For Civil Contempt: An Asserted Eighth Amendment Challenge Faces A Semantical Defense, Seth J. Kelsey
San Diego Law Review
The recent decisions that have attempted to explain the scope of the Cruel and Unusual Punishments Clause suggest that, abstractly, there may be some merit in the asserted eighth amendment challenge. Before the challenge can be argued from a position of strength, however, there is at least one prerequisite. The "distinction according to purpose" accepted by the courts must be recognized for what it is in many instances-a semantical distinction that fails to look at the coercive imprisonment any further than the locking of the jailhouse door. What strength there is in the challenge, in the context of coercion to …
Boom, Doom, And Gloom Over The Oceans: The Economic Zone, The Developing Nations, And The Conference On The Law Of The Sea, Elisabeth Mann Borgese
Boom, Doom, And Gloom Over The Oceans: The Economic Zone, The Developing Nations, And The Conference On The Law Of The Sea, Elisabeth Mann Borgese
San Diego Law Review
The quest for an international ocean regime came with the discovery of the common heritage of mankind. Science had laid bare the hidden environment of the deep oceans and seabeds; technology had put their riches at man's reach. But the wealth of the oceans was beyond the limits of national sovereignty, beyond the limits of the classical concept of ownership. There was no law, national or international, to regulate their uses, because technical advances had made the old law of the sea obsolete. So Either nations would go out there for a "grab," and, in the process, they would destroy …
The Patrimonial Sea Or Economic Zone Concept, Andres Aguilar M.
The Patrimonial Sea Or Economic Zone Concept, Andres Aguilar M.
San Diego Law Review
On June 20th, 1974, the Third United Nations Conference on the Law of the Sea will open its second session at Caracas, Venezuela, for the purpose of dealing with the substantive work of the Conference, as stipulated in paragraph 4 of resolution 3067 (XXVIII), adopted by the General Assembly of the United Nations on November 16, 1973. It is worth recalling, briefly, that the decision to convene this Conference was adopted by the United Nations General Assembly on December 17, 1970, in resolution 2750 C (XXV), from which it is clearly apparent.
Economic Aspects Of Fisheries Utilization In The Law Of The Sea Negotiations, Lee G. Anderson
Economic Aspects Of Fisheries Utilization In The Law Of The Sea Negotiations, Lee G. Anderson
San Diego Law Review
This Article will discuss several of the proposed solutions to the problem of how the distribution of the wealth of the living resources will be affected by the exploitation program in light of their ability to bring about rational economic use of marine fisheries. The success in each case is directly related to preciseness of the definition of property rights. This Article also contains three other short sections that deal with the economic aspects of other issues of international fisheries management. Section II discusses the problem of public goods. For instance, secure property rights notwithstanding, international co-operation in research, and …
The Wealth Of The Oceans And The Law Of The Sea: Some Preliminary Observations, Giulio Pontecorvo, Roger Mesznik
The Wealth Of The Oceans And The Law Of The Sea: Some Preliminary Observations, Giulio Pontecorvo, Roger Mesznik
San Diego Law Review
This Article will consider one aspect of the valuation problem. The focus is on the implications of rapid changes in the value of ocean and ocean related resources on social control (management) of ocean activity. Most often, economists, in order to analyze a problem use the concept of equilibrium under static or comparative static conditions. However, it is the dynamics of the rapidly changing (increasing) value of ocean resources that is one of the driving forces behind the rising interest in ocean management programs. Accordingly, these changes will be considered in a dynamic framework with due consideration to the related …
Recent Developments In The Law Of The Sea V: A Synopsis, Dennis Greenwald, Robert Iglow, Jack Mann
Recent Developments In The Law Of The Sea V: A Synopsis, Dennis Greenwald, Robert Iglow, Jack Mann
San Diego Law Review
Each year, as part of the San Diego Law Review's symposium on law of the sea, a student article is dedicated to a synopsis of recent events in the field. The function of such as article is to provide the reader with a broadly circumscribed report of recent developments presented under the topic headings of conservation, fishing, pollution, seabed resources, shipping and sovereignty. This year's compendium covers the period between January 1, 1973 and December 31, 1973. A myriad of sources are represented including the United States Code Congressional and Administrative News, the Environmental Reporter, International Legal Materials, the United …
Toward Peaceful Settlement Of Ocean Space Disputes: A Working Paper, William H. Haubert Ii
Toward Peaceful Settlement Of Ocean Space Disputes: A Working Paper, William H. Haubert Ii
San Diego Law Review
In June, 1974, the Third Law of the Sea Conference will convene in Caracas, Venezuela to consider the establishment of an Ocean Regime. Although the ostensible scope of this conference is limited to a regime for the seabed and the subsoil of the ocean floor, a glance at the ancillary matters to be considered reveals that machinery could be established with jurisdiction over all matters related to ocean space (i.e. the water surface, water column, the ocean floor, and the subsoil). Irrespective of the scope of matters encompassed by the proposed regimes, a necessary component of that machinery is a …
Foreword, Edmund S. Muskie
Foreword, Edmund S. Muskie
San Diego Law Review
This collection of scholarly studies continues the fine tradition of the San Diego Law Review in contributing to our understanding of the Law of the Sea. It is an honor for me to have been given a small part in this endeavor.
The Law Of The Sea: Alliances And Divisive Issues In International Ocean Negotiations, Judith Tegger Kildow
The Law Of The Sea: Alliances And Divisive Issues In International Ocean Negotiations, Judith Tegger Kildow
San Diego Law Review
Throughout history, the oceans have played a major role in geo-politics. nations states have depended on the seas for their economies, for political power and for military effectiveness. The critical importance of the oceans is once again reflected in national and international arenas. Freedom of the seas and resource management for the oceans have become two major issue areas, bringing some nations into conflict while creating new alliances between other states.