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Full-Text Articles in Law
The Immigration Selection System: A Proposal For Reform, Austin T. Fragomen, Alfred J. Del Rey Jr.
The Immigration Selection System: A Proposal For Reform, Austin T. Fragomen, Alfred J. Del Rey Jr.
San Diego Law Review
This Article reviews the historical background of our present immigration law and analyzes the policy goals of immigration law in light of the major contemporary issues that bear directly on the immigration act: population growth, the requirements of the labor force, family reunion, illegal immigration, and refugee admission. The authors contend that the immigration act in its present form does not adequately deal with the expanding nature of these problems, and offer recommendations to reconcile present deficiencies with recent and foreseeable world developments. The authors suggest reforms that would balance humanitarian goals with domestic, political, socioeconomic, demographic, and foreign policy …
Consequences Of Nationality In American Law, Michael Terry Hertz
Consequences Of Nationality In American Law, Michael Terry Hertz
San Diego Law Review
Nationality plays its principal role in immigration matters, but it has been put to significant uses in other areas of American law. This Article focuses on the consequences of the application of the nationality concept in constitutional law, civil rights legislation, taxation, and securities regulation. The author examines the functions which nationality has been required to fulfill and assesses the concept's capacity for accomplishing assigned legal tasks. The author criticizes the overbroad uses of nationality as a legal regulator, but finds that the concept can play a useful, though restricted, role in some areas.
The Operations Instructions Of The Immigration Service: Internal Guides Or Binding Rules?, Leon Wildes
The Operations Instructions Of The Immigration Service: Internal Guides Or Binding Rules?, Leon Wildes
San Diego Law Review
This Article addresses the impact of Operations Instructions, promulgated by the United States Immigration and Naturalization Service, and their impact on the determination of alien's rights. The author argues that these instructions can be more crucial to the determination of an alien's rights than the terms of the statute itself. The author suggests that the courts are slowly beginning to recognize that many such instructions have a substantial impact on aliens' rights and may sometimes convey very tangible substantive benefits. The author argues that the courts should more consistently treat these instructions as rules to be promulgated, implemented, and generally …
To Be Or Not To Be A Resident - Tax Is The Question, Sanford M. Fisch
To Be Or Not To Be A Resident - Tax Is The Question, Sanford M. Fisch
San Diego Law Review
This Comment examines this issue of taxation of nonresident aliens. The author argues that nonresident aliens have varying degrees of activity in the United States because of business, family, or tourism. When this level of activity is of the requisite nature, an alien can be classified as a resident for United States income tax purposes, and that different treatment under the tax laws of residents and nonresidents makes this distinction important. The author examines income tax planning for the nonresident alien, who is married to a citizen or resident of the United States, and for the nonresident alien, who is …
Recent Developments In The Immigration Laws Of The United States 1978-1979, Anthony J. Passante Jr.
Recent Developments In The Immigration Laws Of The United States 1978-1979, Anthony J. Passante Jr.
San Diego Law Review
This Synopsis focuses on the recent developments in the field of immigration law, during 1978 to 1979. The discussion of the developments includes selected legislative enactments and regulations promulgated pursuant to said enactments, important judicial decisions, significant administrative actions taken by the Immigration and Naturalization Services and the Board of Immigration Appeals, and proposed legislation. The Synopsis serves as a brief summary of current events, and as a guide for further research into United States immigration law.
Limiting Congressional Denationalization After Afroyim, J. P. Jones
Limiting Congressional Denationalization After Afroyim, J. P. Jones
San Diego Law Review
This Comment discusses the constitutional aspects of loss of United States citizenship. The author contrasts expatriation with procedures developed by the state for involuntary deprivation of citizenship. The author further contrasts early judicial and legislative debates over the existence of a citizen's constitutionally guaranteed right to forfeit his citizenship with the twentieth-century controversy surrounding unilateral government action to denationalize. Examining existing statutes in light of recent Supreme Court decisions limiting congressional authority in this area, the author suggests an analysis of contemporary statutory presumptions based upon the relationship of proscribed activity and allegiance.
Motivation And Constitutionality: A Postscript, Lawrence A. Alexander
Motivation And Constitutionality: A Postscript, Lawrence A. Alexander
San Diego Law Review
The editors of the San Diego Law Review have been kind enough to allow me to add briefly to my prior remarks on motivation and constitutionality.
Exhibitionism: A Psycho-Legal Perspective, Marilyn Ruth Riley
Exhibitionism: A Psycho-Legal Perspective, Marilyn Ruth Riley
San Diego Law Review
The criminalization of exhibitionism is indicative of our society's unwillingness to deal rationally with sex offenses. As a result of this attitude, present treatment of exhibitionists is ineffective and even harmful. Ms. Riley argues that in order to encourage a more appropriate response to these men, their condition must be viewed from a psycho-legal perspective, which considers the presence of emotional disorders in individuals caught up in the penal system. Applying this perspective, the author proposes a diversion program that incorporates medical understanding of the disorder and therefore offers the possibility of curing exhibitionists and restoring them as productive members …
People V. Wheeler: California's Answer To Misuse Of The Peremptory Challenge, Douglas H. Barker
People V. Wheeler: California's Answer To Misuse Of The Peremptory Challenge, Douglas H. Barker
San Diego Law Review
In People v. Wheeler, the California Supreme Court limited the scope of peremptory challenges. Under the decision, no juror may now be challenged from a jury panel on the basis of his group affiliation. Such exclusions were found to be violative of the representative cross-section requirement for impaneling an impartial jury. This Comment discusses the court's rationale in deciding Wheeler. It then examines (1) whether the holding should be extended to civil litigation, (2) when a "group" becomes legally cognizable, (3) how the burden of proof may be met, and (4) what the role of the trial judge should be …
Reductionism In The Law Schools Or Why The Blather About The Motivation Of Legislators, Arthur S. Miller
Reductionism In The Law Schools Or Why The Blather About The Motivation Of Legislators, Arthur S. Miller
San Diego Law Review
The ghost of Christopher Columbus Langdell-the dean of the Harvard Law School whom Judge Jerome Frank once called a "brilliant neurotic"-still stalks the law schools. Often it comes to rest int he offices of the law reviews that most law schools think it necessary to publish. Here, Langdell's influence may be seen in almost everything the editors print: the choice of topics, the selection of articles, and particularly the affliction that Karl Llewellyn once called "cititis," the disease of too many footnotes. (The Disease is contagious; it infects the Supreme Court itself, as any issue of the Supreme Court Reporter …
California's Statutory Attempt To Regulate Foreign Corporations: Will It Survive The Commerce Clause, Mark E. Kruse
California's Statutory Attempt To Regulate Foreign Corporations: Will It Survive The Commerce Clause, Mark E. Kruse
San Diego Law Review
Section 2115 of the California Corporations Code asserts control over select internal affairs of a foreign corporation if the corporation satisfies the two tests outlined in the statute. Examples of internal affairs include the election and removal of directors, method of voting for directors, and reorganizations and mergers. This Comment examines section 2115 in relation to the commerce clause of the United States Constitution. California's interests in enforcing the statute are balanced against the burdens imposed upon the free flow of interstate commerce. The author concludes that application of section 2115 excessively burdens interstate commerce and is therefore unconstitutional.
Sears, Roebuck & Co. V. San Diego County District Council Of Carpenters: The Demise Of Federal Preemption Of Labor Disputes, Terry Flett
San Diego Law Review
The National Labor Relations Board, with certain exceptions, has exclusive jurisdiction over labor disputes involving union activity which the provisions of the National Labor Relations Act may either protect or prohibit. In Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, the United States Supreme Court excepted from this doctrine of federal preemption labor disputes involving peaceful trespassory union activity. This Comment examines the Sears decision and its impact and concludes that although the decision purports to create only an exception to the doctrine of federal preemption, the Sears exception undermines the very purpose and efficacy of …
Title 4.5: California Liquidated Damages, Michael John Mais, Paul B. Martins
Title 4.5: California Liquidated Damages, Michael John Mais, Paul B. Martins
San Diego Law Review
Recent criticisms of California's liquidated damages law prompted the California Legislature to substantially rewrite the law in this area. The new law was passed in 1977 and became effective in July of 1978. A presumption of validity for more liquidated damages clauses replaces a century-old presumption of invalidity. This Comment examines the rationale behind the new law, discusses relevant portions of the enactment, and analyzes any ambiguities which my still exist.
The Right To Jury Trial In Complex Civil Litigation, Tina Marie Pivonka
The Right To Jury Trial In Complex Civil Litigation, Tina Marie Pivonka
San Diego Law Review
This Comment examines the growing trend to strike jury demands in complex commercial litigation. The first section reviews the historical background of the seventh amendment right to jury trial. The second section examines Ross v. Bernhard, the leading Supreme Court precedent on the right. The writer next explores the five recent lower court cases dealing with a motion to strike jury demand. Finally the writer critically evaluates the new trend and demonstrates that Ross has been misinterpreted.
Confidential Communication Between Parent And Child: A Constitutional Right, Jeff M. Sandlow
Confidential Communication Between Parent And Child: A Constitutional Right, Jeff M. Sandlow
San Diego Law Review
Prior to 1978 no jurisdiction, either by statute or common law decision, protected by a testimonial privilege the confidential communications shared between parents and their children. People v. Doe is the seminal case which recognized a constitutionally based privilege arising out of the developing federal right to privacy. This Comment explores the political theory, the psychological data, and the case law which mandates the protection of confidences born of this most intimate relationship.
Comparative Fault And Settlement In Joint Tortfeasor Cases: A Plea For Principle Over Policy, J. Adam Sarancik
Comparative Fault And Settlement In Joint Tortfeasor Cases: A Plea For Principle Over Policy, J. Adam Sarancik
San Diego Law Review
In American Motorcycle v. Superior Court, the California Supreme Court failed to extend the "pure" system of comparative negligence to multiple tortfeasor cases. California's system of comparative negligence remains "pure" only from a plaintiff's point of view. This Comment discusses how liability could, and why liability should, remain in proportion to fault among all parties in any negligence case.
Equity, Efficiency, And Income Tax Theory: Do Misallocations Drive Out Inequities, Boris I. Bittker
Equity, Efficiency, And Income Tax Theory: Do Misallocations Drive Out Inequities, Boris I. Bittker
San Diego Law Review
The standard traditionally employed by tax theorists in assessing the federal income tax is equity, but a new generation of theorists argues that ostensible inequities are converted by the market into inefficiencies. These opposing theories are based on divergent behavioral assumptions: equity theorists usually assume that the economic burden of the tax falls on the nominal taxpayer, while efficiency theorists usually assume that the burden is partly or wholly shifted by the nominal taxpayer to customers, suppliers, or others. This article examines the relationship of these conflicting assumptions to the conclusions reached by equity and efficiency theorists.
Breaking The Chains That Bind: Arbitration Agreements Versus Forum Rights Under The Commodity Futures Trading Commission Act Of 1974, M. Van Smith
San Diego Law Review
Although Congress enacted legislation in 1974 to prohibit predispute arbitration agreements, the Commodity Futures Trading Commission (CFTC) has adopted a regulation allowing predispute arbitration agreements if customers are given the warning prescribed by the Commission. Since the 1974 legislation, some federal courts have refused to defer to the jurisdiction of the CFTC. The regulation adopted by the Commission and the cases refusing to defer to the jurisdiction of the Commission threaten to nullify the intent of Congress that arbitration be voluntary.
Private Actions Under The Suitability And Supervision Duties Of Exchange And Dealer Association Rules: The Fraud Requirement, Thomas Magliozzi
Private Actions Under The Suitability And Supervision Duties Of Exchange And Dealer Association Rules: The Fraud Requirement, Thomas Magliozzi
San Diego Law Review
A number of courts have implied private causes of action against securities broker-dealers for their breach of the supervision and suitability duties imposed by the self-regulatory rules of the New York Stock Exchange and the National Association of Securities Dealers. The prevailing view denies recovery in the absence of conduct "tantamount to fraud." In examining the development of the fraud requirement, the author distinguishes Rule 10b-5 actions and contends that such a strict curtailment of actions brought under self-regulatory rules is not compelled by clear judicial precedent or by legislative purpose.
The Death Of Palsgraf: A Comment On The Current Status Of The Duty Concept In California, Arthur N. Buck
The Death Of Palsgraf: A Comment On The Current Status Of The Duty Concept In California, Arthur N. Buck
San Diego Law Review
The California courts are in the forefront of the development of modern tort law into a pro-plaintiff, pro-recovery system. This Comment analyzes the evolution of the duty concept in California tort law. Duty has become a plaintiff-oriented doctrine. Duty has reduced the importance of proximate cause in the negligence analysis. Pro-defendant aspects of duty have atrophied, replaced by an analysis based primarily on foreeseability. Duty, traditionally decided by the trial judge as a threshold question of law, has in many recent cases been decided, in effect, by the jury as a question of fact.
Introduction, Elliot L. Richardson
Introduction, Elliot L. Richardson
San Diego Law Review
For over ten years, in three Conferences and some nine Conference sessions, the United Nations has grappled with the codification and the creation of the Law of the Sea. Numerous writers have recounted the uniqueness and importance of these negotiations and the difficulties in the path of agreement.... When the negotiations recessed temporarily last September in New York, there was strong sentiment on the part particularly of the smaller countries that significant progress must be made on the outstanding issues during the Eighth Session opening this March to justify the continuation of UNCLOS III. I propose to use this introduction …
The Politics Of Manganese Nodules: International Considerations And Domestic Legislation, John M. Murphy
The Politics Of Manganese Nodules: International Considerations And Domestic Legislation, John M. Murphy
San Diego Law Review
The legal regime governing the recovery of deep seabed minerals may be the most difficult issue now confronting the United Nations Conference on the Law of the Sea. Congressman Murphy discusses unilateral legislation, concluding that it would be fully consonant with prevailing international law and that it would act as a spur to the negotiations of the Conference. He analyzes the Deep Seabed Mining bill in the contexts of the international legal system and the Law of the Sea Conference and urges the United States to enact the bill so that exploration and commercial recovery may proceed.
The Group Of 77 At The United Nations: An Emergent Force In The Law Of The Sea, Alan G. Friedman, Cynthia A. Williams
The Group Of 77 At The United Nations: An Emergent Force In The Law Of The Sea, Alan G. Friedman, Cynthia A. Williams
San Diego Law Review
Authors Friedman and Williams trace briefly the diplomatic history of the Group of 77 in United Nations fora, then detail the role the G-77 plays within the Law of the Sea Conference. By providing illustrations of the G-77 bloc-policy process, the authors construct a model to explain G-77 behavior. They conclude that G-77 unity is now less certain than before because of the many cross-cutting interests at stake in the UNCLOS III milieu. They also cite Western intransigence as a unifying force for the G-77 under the "common enemy" principle.
Dolphin Conservation In The Tuna Industry: The United States' Role In An International Problem, Laurel Lee Hyde
Dolphin Conservation In The Tuna Industry: The United States' Role In An International Problem, Laurel Lee Hyde
San Diego Law Review
Thousands of dolphin die annually in the international tuna fishery. This Comment explores the history of that problem and the domestic and international attempts to alleviate it. Foreign legislation, positions of international organizations, and documents of the United Nations Law of the Sea Conference are reviewed as potential sources of an international solution. The Comment emphasizes the need for active United States involvement in international programs, comprehensive data on the dolphin populations, and immediate action to avoid excessive exploitation. It concludes with a suggestion that increased public concern for dolphin may be utilized effectively to support conservation initiatives.
Military Uses Of Ocean Space And The Developing International Law Of The Sea: An Analysis In The Context Of Peactime Asw, Rex J. Zedalis
Military Uses Of Ocean Space And The Developing International Law Of The Sea: An Analysis In The Context Of Peactime Asw, Rex J. Zedalis
San Diego Law Review
Mr. Zedalis examines the international legal prescriptions regulating peacetime military uses of ocean space other than passage through straits used for international navigation. He contrasts the approaches to possible regimes set forth in the 1958 Conventions and in UNCLOS III and assesses each. Finally, he advances which proposal is the most desirable.