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Full-Text Articles in Law
Immigration Benefits For Children Born Out Of Wedlock And For Their Natural Fathers: A Survey Of The Law, Paul Wickham Schmidt
Immigration Benefits For Children Born Out Of Wedlock And For Their Natural Fathers: A Survey Of The Law, Paul Wickham Schmidt
San Diego Law Review
This Article discusses the complex and unusual way in which the Immigration and Nationality Act of 1952 defines "child" to exclude natural fathers and their illegitimate children from the scheme for preferred immigration status while granting the same status to natural mothers and their illegitimate children. The author begins by discussing the importance of the term "legitimate" in the act and goes on to explain three ways an illegitimate child may still meet the Act's definition of "child" by fulfilling three requirements for legitimization: 1) sufficient acts of legitimization, 2) the age requirement, and 3) legal custody. The author finishes …
The Legal Status Of Amerasian Children In Japan: A Study In The Conflict Of Nationality Laws, Chin Kim, Stephen R. Fox
The Legal Status Of Amerasian Children In Japan: A Study In The Conflict Of Nationality Laws, Chin Kim, Stephen R. Fox
San Diego Law Review
This Article examines the conflict between Japanese and United States nationality laws. Due to the conflict in these laws, nearly 4000 Amerasian children could become stateless. The article reviews the two major conflicting principles of nationality laws, jus sanguines and jus soli, and then reviews both the Japanese & Unites States nationality laws. The article goes on to discuss the effects of statelessness including legal, social, and economic hardships. Finally the article discusses solutions to the dilemma through unilateral, bilateral, and multilateral actions.
Alien Physicians And Their Admission Into The United States, Allen E. Kaye, Dan P. Danilov, Laurier B. Mcdonald
Alien Physicians And Their Admission Into The United States, Allen E. Kaye, Dan P. Danilov, Laurier B. Mcdonald
San Diego Law Review
This Article discusses legislation passed by Congress in 1976 to drastically reduce the eligibility of alien physicians to enter the United States because of a fear of inferior medical services and a belief that such immigration was leading to a shortage of health care providers in some foreign nations. The article surveys the new requirements such as passing both medical and English competence examinations as well as obtaining individual labor certifications. The article goes on to discuss ways in which alien physicians can come to the Unites States without passing these examinations.
Errata In The Articles: Immigration Benefits For Children Born Out Of Wedlock And For Their Natural Fathers And Consular Discretion In The Immigrant Visa-Issuing Process
San Diego Law Review
No abstract provided.
Consular Discretion In The Immigrant Visa-Issuing Process, Kim R. Anderson, David A. Gifford
Consular Discretion In The Immigrant Visa-Issuing Process, Kim R. Anderson, David A. Gifford
San Diego Law Review
This study examines the exercise of discretion by consular officers in deciding whether to issue or refuse immigrant visas in an effort to determine if these decisions are arbitrary or unlawful. The study begins by examining the procedures and factors mandated by the Immigration and Nationality Act for use in determining eligibility to immigrate. The study then discusses and compares the typical procedures and eligibility factors utilized by consular offices in the field. Next the study does an evaluation of extra-statutory factors affecting the consular officer's determination including personal background, the effect of intermediaries, lack of time, the promotion system, …
Foreword, Joshua Eilberg
Foreword, Joshua Eilberg
San Diego Law Review
Immigration is the root of America's national existence. The immigration process has fueled the growth of this country as well as shaped its character. Even the most cursory review of this country's history reminds us of the vital role played by immigrants in the development of the United States.
Introduction: Motivation And Constitutionality, Lawrence A. Alexander
Introduction: Motivation And Constitutionality, Lawrence A. Alexander
San Diego Law Review
This introduction sets forth the key questions regarding motivation and constitutionality that scholars must answer in order to develop a complete theory of motivational inquiry in constitutional law. The author begins by discussing the theoretical overview of the motivation/effects problem. The author discusses effects theories of constitutional law, motivation theories, relevant motives in both, and the problem of motive in collective bodies. The author then examines Simon's theory of motivation and the equal protection clause, which is that the equal protection clause's central meaning is prohibiting racially prejudiced governmental actions.
Legislative Motivation And Fundamental Rights In Constitutional Law, J. Morris Clark
Legislative Motivation And Fundamental Rights In Constitutional Law, J. Morris Clark
San Diego Law Review
This article discusses the relevance of legislative motivation to the judicial decision whether to uphold or to strike down laws affecting certain "fundamental" constitutional rights. The author contends that courts do and should consider the motivation behind the passage of laws in constitutional cases. First the author addresses the meaning of legislative "motivation" and "purpose". Second, the author discusses what an "individious" legislative motivation consists of and how the Court should decide when such a motivation exists. Next the author compares an analysis of the legislative purpose against traditionally used balancing tests of good vs. bad effects. The author then …
Motivational Analysis As A Complete Explanation Of The Justification Process, Scott H. Bice
Motivational Analysis As A Complete Explanation Of The Justification Process, Scott H. Bice
San Diego Law Review
This commentary addresses the justiciability requirement that must be met by a person challenging the constitutionality of government action and the claim that the purpose of justification is to prove that the government's action is not caused by constitutionally illicit considerations. First the author discusses the justification process in racial equal protection and some problems with Simon's argument including Simon's claim that proof of racial prejudice is a necessary condition for judicial invalidation. Next the author discusses the justification process in the context of the First Amendment. The author concludes that although motivational analysis may explain the function of the …
Reflections On Motive Review, Paul Brest
Reflections On Motive Review, Paul Brest
San Diego Law Review
In this commentary the author argues that motives should remain legally determinative even if the statute language or its effects are constitutional. The author discusses many areas of the law including crimes, intentional torts, and coerced wills, in which the motivation of the party is determinative. The author concludes that while not novel, Professor Simon's idea of a generic suspicion that racial classifications are unconstitutionally suggests the possibility that other substantive doctrines may also reflect concerns with administrative and legislative motives.
The Centrality And Limits Of Motivation Analysis, John Hart Ely
The Centrality And Limits Of Motivation Analysis, John Hart Ely
San Diego Law Review
In this commentary the author claims that his once radical ideas have been outflanked on the left by succeeding generations. The author then goes on to discuss the relationship between unconstitutional motivation and suspect classifications. Next the author discusses his fear that while the Court has recognized the relevance of motivation, it has denied the constitutional claim in each case. The author concludes by warning the court that it would be a tragedy to expand its awareness of the relevance of motivation into a thoroughly mistaken notion that a denial of a constitutional right does not count as such unless …
The Costs Of Motive-Centered Inquiry, Kenneth L. Karst
The Costs Of Motive-Centered Inquiry, Kenneth L. Karst
San Diego Law Review
This commentary addresses why a motive-centered theory, such as the one proposed by Professor Simon, will damage the cause of racial justice in this country if the theory became entrenched as constitutional doctrine. The author claims that such a theory places a heavy burden on persuasion on the wrong side of the dispute and forces litigants in a race case into name-calling on one side and self-righteousness on the other side.
If "The Devil Himself Knows Not The Mind Of Man", How Possibly Can Judges Know The Motivation Of Legislators?, Arthur S. Miller
If "The Devil Himself Knows Not The Mind Of Man", How Possibly Can Judges Know The Motivation Of Legislators?, Arthur S. Miller
San Diego Law Review
This commentary is based upon a statement published by Judge J. Braxen Craven, Jr., of the Court of Appeals for the Fourth Circuit when he said that there are result oriented judges and judges who are result oriented but don't know it or won't admit it. The author argues that an inquiry into motivation is clearly a futile quest that's only purpose is to enable judges to read their ideas of good social policy into the law with the pretense that they are not doing so. The author claims that judicial opinions are the product of judicial biases and lawyers …
A Brief Comment On Motivation And Impact, Michael Perry
A Brief Comment On Motivation And Impact, Michael Perry
San Diego Law Review
This commentary focuses on two problems. First, it focuses on the relevance of motivation to constitutional adjudication. The author does not add anything to the theory of Professor Brest, but does clarify why and to which sorts of constitutional claim motivation is relevant. Then the commentary focuses on the significance of disproportionate racial impact. The author argues that any law having a disproportionate racial impact ought to be subject to an unusually heavy burden of justification, although not automatically struck down. The author disagrees with Professor Simon because the author believes a law with a disproportionate racial impact should be …
Rent Control: A Practical Guide For Tenant Organizations, Kathryn Lori Partrick
Rent Control: A Practical Guide For Tenant Organizations, Kathryn Lori Partrick
San Diego Law Review
This comment explores the issue of rent control. After a brief history of rent control laws, the author examines the arguments for and against rent control. Next the author discusses the general constitutional restrictions on rent control legislation. The author then addresses specific contents and problems involved in drafting rent control legislation. Finally the author provides sample rent control legislation and encourages tenant organization to follow the guidelines of the comment in order to withstand constitutional challenges and landlords' retaliatory reactions to rent control legislation.
One Tier Beyond Ramapo: Open Space Zoning And The Urban Reserve, Sandra L. Mcmahan
One Tier Beyond Ramapo: Open Space Zoning And The Urban Reserve, Sandra L. Mcmahan
San Diego Law Review
This comment examines the problem of managing urban growth while simultaneously preserving open space through careful planning. Specifically the comment examines the planning for the temporary preservation of open space that is a byproduct of the successful management of urban growth. The author begins by discussing a method of regulating open space land by Professor Robert H. Freilich. The author uses this method as a model to examine techniques for the conservation of open space land through the establishment of an urban reserve. The author pays special attention to the taking issues that must be circumvented if the program is …
Public Beaches: A Reevaluation, Richard H. Zimmerman
Public Beaches: A Reevaluation, Richard H. Zimmerman
San Diego Law Review
This comment examines the conflict between the public's need for recreational access to the coast and the private littoral-owner's right to preserve and to protect his property. The author begins by discussing the California Coastal Act of 1976 and its effectiveness in protecting and in enhancing the public's rights in the coastline. The author then examines alternative methods of protecting the public's right to the coastline. Next the author examines judicial remedies of implied dedication and custom follows. The author concludes that the Coast Act might provide the last opportunity to preserve the public's rights to enjoy California's coastline, but …
Racially Prejudiced Governmental Actions: A Motivation Theory Of The Constitutional Ban Against Racial Discrimination, Larry G. Simon
Racially Prejudiced Governmental Actions: A Motivation Theory Of The Constitutional Ban Against Racial Discrimination, Larry G. Simon
San Diego Law Review
This article attempts to articulate and to explain the operation of a motivation theory of constitutional law in which the burdens of justification reflect the differing degrees to which rules and effects are themselves probative of illicit motivation, especially in cases involving racially based equal protection claims. The article offers a theory under which a finding that governmental action was causally affected by racial prejudice can be understood as both a sufficient and a necessary condition for holding the action unconstitutional. The author begins by explaining the normative theory that makes or ought to make the question of racially prejudiced …
Reflections On A Unified Theory Of Motive, Theodore Eisenburg
Reflections On A Unified Theory Of Motive, Theodore Eisenburg
San Diego Law Review
In this commentary the author claims that one should not attempt to answer the question whether motive should be considered in constitutional adjudication too quickly. One should not extrapolate that motive should be constitutionally relevant in one circumstance simply because motive is relevant in another circumstance. The author concludes that one should not expect a single answer to the motive question.
Private Rule 10b-5 Recovery For Open Market Insider Trading: The Propriety Of Privity And Reliance Requirements, Clyde C. Greco Jr.
Private Rule 10b-5 Recovery For Open Market Insider Trading: The Propriety Of Privity And Reliance Requirements, Clyde C. Greco Jr.
San Diego Law Review
This comment explores the split of authority on whether privity and reliance prerequisites should be imposed on private recovery for insider trading in the market under rule 10b-5. The author starts by discussing the Second Circuit's view, which eliminates the privity requirement and relaxes the reliance requirement, and the view's advantages and disadvantages. Next, the author discusses the Sixth Circuit's view, which requires proof of direct causation in fact and privity. The author concludes that in order to protect people from securities fraud and hold violators liable for rule 10b-5 violations, the rule must not be conditioned on privity and …
The California Statutory Close Corporation: Gateway To Flexibility Or Trap For The Unwary, William K.S. Wang
The California Statutory Close Corporation: Gateway To Flexibility Or Trap For The Unwary, William K.S. Wang
San Diego Law Review
This article examines the California General Corporation Law's new provisions regarding close corporations. The author begins by discussing the actual provisions in the law. The author then discusses the advantages and disadvantages of being a close corporation and utilizing the close corporation devices. Specifically the author looks at Federal tax problems and California securities law problems. Next, the author makes recommendations for how to improve the close corporation provisions of the law. The author concludes that new rules may transform what was meant to be a blessing, provided by the provisions for close corporations, into a curse.
Obedience To Lawful Authority, Michael D. Bayles
Obedience To Lawful Authority, Michael D. Bayles
San Diego Law Review
In this brief article, the author distinguishes between justifiable power-conferring rules and unjustifiable allegiance to an authority who holds a position. Rules are justified and can create justifiable positions of authority when the rules are exercised to promote its subject's secular well being. The author argues that when rules are not justifiable, there is no obligation to comply with such laws.
Thomas More And The Restraint Of Power, James Mcconica
Thomas More And The Restraint Of Power, James Mcconica
San Diego Law Review
This brief article discusses Thomas More and his views on the use of power by the government. The author contends that More's first priority was the evangelical restoration of a Christian conscience in Europe and that his decision to die for his conviction was a gesture admonitory, inspiring, and superbly achieved.
A Securities Lawyer's Dilemma: The Sec's Policy Of Disclosure V. The Attorney-Client Privilege, Grant B. Luna
A Securities Lawyer's Dilemma: The Sec's Policy Of Disclosure V. The Attorney-Client Privilege, Grant B. Luna
San Diego Law Review
This comment discusses the possible conflicts between the attorney-client privilege and the Securities Exchange Commission's requirements. The author begins by examining the National Student Marketing litigation, which reflects a new role for securities lawyers and a new SEC policy in enforcing this role. The author then discusses the basic premises underlying the SEC's imposition of a duty on a lawyer to disclose client conduct. The author concludes that the issue remains unsettled, but that the privilege is in danger unless the legal profession can convince the courts that maintaining confidences has a positive effect on compliance with the law.
Unconstitutional Government Speech, Jay S. Bloom
Unconstitutional Government Speech, Jay S. Bloom
San Diego Law Review
This comment examines the decision of the United States Supreme Court in Wooley v. Maynard in which it held that a state can not make it a crime for a citizen to cover the state motto appearing on a citizen's car's license plate. The author begins by discussing the doctrine of compelled speech. The author then moves on to discuss symbolic speech. Next, the author examines the doctrine of Unconstitutional government speech. The author concludes that is it time for the judiciary to define the limits of governmental activities in the political machinery and that Wooley indicates the Court's willingness …
Automatism: The Unconsciousness Defense To A Criminal Action, Patricia E. Gould
Automatism: The Unconsciousness Defense To A Criminal Action, Patricia E. Gould
San Diego Law Review
This comment examines the development and significance of recognition of automatism as a defense to criminal charges. The author starts by discussing the medical concept of automatism. The author includes a discussion of the possible causes of automatism as well as the English and American law on the subject. Next the author explores whether a separate automatism defense should be recognized based on a common law argument and constitutional argument. The author concludes that the automatism defense should be recognized because there is not fault on the part of the criminal defendant and therefore no responsibility for the criminal act.