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Roles Of Judges And Attorneys Under The Non-Sanction Scheme In Japanese Civil Procedure, Koichi Miki Jan 2003

Roles Of Judges And Attorneys Under The Non-Sanction Scheme In Japanese Civil Procedure, Koichi Miki

Hastings International and Comparative Law Review

In many jurisdictions, the roles of judges and attorneys in modern civil procedure are becoming multi-faceted and, accordingly, more and more complex. This paper outlines the Japanese situation, focusing on the most recent reform of the Japanese Code of Civil Procedure (the New Code), which occurred in 1996. The reform introduced several innovative devices, none of which contained sanction provisions for implementation or enforcement of their legal effect. The inclination towards non-sanction schemes of this kind reflects the recent trend in reforms. The non-sanction scheme inevitably has an influence on the roles of judges and attorneys. Therefore, it is necessary ...


Reclaiming Civil Rights In Uncivil Times, Eric K. Yamamoto Jan 2003

Reclaiming Civil Rights In Uncivil Times, Eric K. Yamamoto

Hastings Race and Poverty Law Journal

Three Cs: Celebration, Caution, and Challenge. Three C's of both worry and hope. The first C is to celebrate the Civil Rights Movement's accomplishments, then and now-the innumerable ways as the movement broadened it has bettered the daily lives of communities of color and, indeed, all Americans. The second C is caution-to caution against the dismantling of civil rights fueled in part by the conservative New Federalism. The third C is challenge-to envision our role in justice struggles in the post-September 11th Bush-Ashcroft era and, specifically, to think hard about what "Civil Rights" now means and why "Reclaiming ...


Officer, Where's My Stuff - The Constitutional Implications Of A De Facto Property Disability For Homeless People, Kevin Bundy Jan 2003

Officer, Where's My Stuff - The Constitutional Implications Of A De Facto Property Disability For Homeless People, Kevin Bundy

Hastings Race and Poverty Law Journal

As municipalities across the nation employ increasingly aggressive anti-homeless policies, homeless people are suffering seizure and destruction of their personal belongings without due process or compensation. Courts generally have not proven receptive to homeless people's claims based on loss of personal property, in some instances refusing to recognize that the homeless can exercise any legally protected property interest at all. Homeless existence itself-a lack of private, defensible space in which to perform basic life functions and secure ownership over personal belongings-leaves homeless people with no legally sanctioned place in which to dwell, and exposes them to arbitrary deprivations of ...


Refugee Policy And Cultural Identity: In The Voice Of Hmong And Iu Mien Young Adults, Bill Ong Hing Jan 2003

Refugee Policy And Cultural Identity: In The Voice Of Hmong And Iu Mien Young Adults, Bill Ong Hing

Hastings Race and Poverty Law Journal

U.S. refugee admission and resettlement policies have helped to shape the cultural identities of refugees in America in unanticipated ways. In this article, the author examines the effects of these policies on the young adult members of two small Laotian refugee groups-the Hmong and the Iu Mien. After reviewing the ad hoc admission and resettlement programs of the federal government, the author reviews a collection of interviews of young college students and discovers a range of attitudes on identity, mainstream culture, religion, and the desire to maintain ethnic culture. The cultural identity being developed by Ju Mien and Hmong ...


Immigration, Civil Rights, And Coalitions For Social Justice, Kevin R. Johnson Jan 2003

Immigration, Civil Rights, And Coalitions For Social Justice, Kevin R. Johnson

Hastings Race and Poverty Law Journal

The treatment of "aliens," particularly noncitizens of color, under the U.S. immigration laws reveals volumes about domestic race relations in the nation. A deeply complicated, often volatile, relationship exists between racism directed toward U.S. citizens and that aimed at noncitizens. The United States has a long history of treating racial minorities in the United States harshly, at times savagely. Noncitizen racial minorities, as foreigners not part of the national community, generally have been subject to similar, although not identical, cruelties but also have suffered deportation, indefinite detention, and more. One need look to further than the treatment of ...


Farmers, Fish, Tribal Power, And Poker: Reallocating Water In The Truckee River Basin, Nevada And California, Barbara Cosens Jan 2003

Farmers, Fish, Tribal Power, And Poker: Reallocating Water In The Truckee River Basin, Nevada And California, Barbara Cosens

Hastings Environmental Law Journal

No abstract provided.


Building On Individual Strengths: Achieving Greater Success In Stormwater Pollution Prevention Through Collaboration, Christine Chestnut Jan 2003

Building On Individual Strengths: Achieving Greater Success In Stormwater Pollution Prevention Through Collaboration, Christine Chestnut

Hastings Environmental Law Journal

No abstract provided.


Commerce Clause Challenges To The Endangered Species Act's Regulation Of Intrastate Species On Private Land?, Lilly Santaniello Jan 2003

Commerce Clause Challenges To The Endangered Species Act's Regulation Of Intrastate Species On Private Land?, Lilly Santaniello

Hastings Environmental Law Journal

No abstract provided.


Enforcing Arms Control Agreements By Military Force: Iraq And The 800-Pound Gorilla, Davis Brown Jan 2003

Enforcing Arms Control Agreements By Military Force: Iraq And The 800-Pound Gorilla, Davis Brown

Hastings International and Comparative Law Review

Despite Iraq's complete disdain for international law, the community of States, acting in accordance with international law, had allowed the Ba'ath regime to remain in power. Iraq therefore enjoyed the benefits of the principles of sovereign equality, non-interference with internal affairs, and, for the most part, non-use of force, without shouldering any of the responsibilities that come with the privilege of recognition as a State. This article begins with a presentation of a new approach to jus ad bellum which takes just war theory to the next level, where force is used as a remedy to a grave ...


Declaring War On The Japanese Constitution: Japan's Right To Military Sovereignty And The United States' Right To Military Presence In Japan, Derek Van Hoften Jan 2003

Declaring War On The Japanese Constitution: Japan's Right To Military Sovereignty And The United States' Right To Military Presence In Japan, Derek Van Hoften

Hastings International and Comparative Law Review

An analysis of the Japanese military and its relationship with the United States military necessarily involves an analysis of historical events, legal issues and international law. Specifically, it involves a detailed examination of the United States' post-war occupation of Japan and the new U.S.-drafted Japanese constitution that followed; of the intricacies of that constitution, including its renunciation of the right to belligerency or to maintenance of armed forces; of internal and external pressures to amend or reinterpret that constitution; of practical realities such as diplomacy, self defense and economic growth; of the legitimacy of a document called a ...


The Right Of Abode Cases: Hong Kong's Constitutional Crisis, Anne R. Fokstuen Jan 2003

The Right Of Abode Cases: Hong Kong's Constitutional Crisis, Anne R. Fokstuen

Hastings International and Comparative Law Review

This note examines the relationship between the Hong Kong Special Administrative Region ("HKSAR") and the People's Republic of China ("PRC") after the handover, and focuses on recent Court of Final Appeals ("CFA") decisions involving the interpretation of Hong Kong's Constitution, the Basic Law, in the "right of abode" context. The author analyzes the most recent decisions in the context of the unacknowledged political balancing act required by the judiciary in post handover Hong Kong and explores the outlook for the "one country, two systems" framework set up at the time of the handover.


International Environmental Justice: Rights And Remedies, Kenneth F. Mccallion Jan 2003

International Environmental Justice: Rights And Remedies, Kenneth F. Mccallion

Hastings International and Comparative Law Review

Although environmental rights are not explicitly enumerated in the Universal Declaration of Human Rights, it has become generally recognized that environmental rights are closely linked with the right to life, which is the most fundamental jus cogens norm, without which no other rights can be exercised. As the environmental crisis has accelerated in the nineteenth and twentieth centuries, constitutional drafters around the globe have explicitly enshrined in their constitutions some form of obligation to protect the environment or other environmental rights. Consequently, states have come to realize the existence of a duty to prevent grave environmental destruction, particularly in the ...


The Problem Of Enforcing Environmental Norms In The Wto And What To Do About It, Sanford E. Gaines Jan 2003

The Problem Of Enforcing Environmental Norms In The Wto And What To Do About It, Sanford E. Gaines

Hastings International and Comparative Law Review

National and international focus and efforts on trade has led to the comparative disadvantage of international environmental policy relative to trade policy in what is known as the trade-environment problematique. The tension between trade and the environment does not exist because trade norms trump environmental norms, but because of the tension between environmental protection and the intensification of economic activity to provide for the world's growing population. This article argues that rather than creating a new international institution to address the trade-environment problematique, international environmental policy should instead be more fully and deeply integrated into economic policy, which can ...


The Origin And Emergence Of International Environmental Norms, Armin Rosencranz Jan 2003

The Origin And Emergence Of International Environmental Norms, Armin Rosencranz

Hastings International and Comparative Law Review

In this symposium essay, I intend to explore the origins and influence of international environmental norms. I believe I can identify twenty norms as either prevailing or rising norms of global environmental law: sic utere tuo ut alienum non laedas (use your property so that the property of others is not damaged); subsidiarity; cultural diversity; the environment is a human right; the common heritage of humankind; environmental impact assessment; intergenerational equity; state sovereignty; the polluter pays principle; active role of civil society and NGOs; notification and consultation; equal access to justice; monitoring, reporting and disclosure; sustainable development; the precautionary principle ...


Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson Jan 2003

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Hastings International and Comparative Law Review

In the space of one generation, through both national and international agreements, nations have established norms and a framework for environmental stewardship of the Earth. One sign of the acceptance and maturation of environmental norms is that nations now worry about how to enforce environmental law and how to achieve compliance. Enforcement of environmental laws is essential to attaining the international objective of sustainable development. To be effective, this enforcement must be routine, reasonably resourced and predictable-an arduous challenge. In order to build a sustainable global community, the nations of the world must renew their commitment to the United Nations ...


Remedying Past Abuses Of Governmental Power - Legal Accountability For The 1968 Events In Poland, Susanne Starecki Jan 2003

Remedying Past Abuses Of Governmental Power - Legal Accountability For The 1968 Events In Poland, Susanne Starecki

Hastings International and Comparative Law Review

Since the 1968 events in Poland, the Polish government has systematically subjected Polish Jews to degrading treatment, denied them their rights to freedom of religion, denied them their right to the enjoyment of property and engaged in numerous acts of discrimination. The issue of justice and reparations for these Polish Jews must be addressed. This note examines the means Polish Jews may explore to remedy Polish governmental abuses. Due to the absence of applicable domestic laws and reparations by Poland, Polish Jews need to utilize international tribunals, particularly the European Court of Human Rights.


A Comparative Look At Anti-Stalking Legislation In The United States And Japan, Nga B. Tran Jan 2003

A Comparative Look At Anti-Stalking Legislation In The United States And Japan, Nga B. Tran

Hastings International and Comparative Law Review

Even with anti-stalking laws in place in the United States, the persistence of stalking crimes is alarming. Providing victims with maximum protection under a legal system requires drafting constitutionally valid statutes, mandatory police education and training on the subject and prevention and early intervention. In addition, comparing the anti-stalking laws in the United States with the newly implemented anti-stalking laws in Japan, which have been very effective in curbing the activities of stalkers, leads to the conclusion that anti-stalking laws in the U.S. should incorporate many of Japan's victim-oriented measures.


Introduction Symposium Of The Japan Association Of The Law Of Civil Procedure: The Role Of The Judge In The Development Of Civil Litigation, Makoto Ito Jan 2003

Introduction Symposium Of The Japan Association Of The Law Of Civil Procedure: The Role Of The Judge In The Development Of Civil Litigation, Makoto Ito

Hastings International and Comparative Law Review

This year's symposium focused on the role of the judge in development of civil litigation. The role of the judge is surely central to many aspects of civil procedure; as the authority and latitude of the judge expand, the authority and latitude of the lawyers may diminish. There is significant evolution of the role of the judge in Japan, Germany and the United States, but whether this evolution is proceeding at the same speed, or in the same direction, is a matter for discussion and further study.


Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus Jan 2003

Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus

Hastings International and Comparative Law Review

The American lawyer has long seemed unique in the world-almost a cowboy figure doing justice against the odds. The American judge, on the other hand, has remained a background figure, rarely taking the initiative and serving instead as a passive, impartial umpire in the contest of the lawyers. During the last half-century, however, the latitude accorded the American lawyer has increasingly been reined in by American judges. Although there has been resistance to this trend, it shows no signs of abating. This paper begins with a very general sketch of the role of attorneys in U.S. society and government ...


The Multiple Roles Of Judges And Attorneys In Modern Civil Litigation, Astrid Stadler Jan 2003

The Multiple Roles Of Judges And Attorneys In Modern Civil Litigation, Astrid Stadler

Hastings International and Comparative Law Review

In contrast to the U.S. adversary system, the great influence of the judge on the conduct of litigation in continental Europe, especially in Germany, is based upon a different understanding of the relationship between the state and its citizens. Based upon historical experience, especially under German law, judges have great constitutionally-based independence. The German Civil Procedure Rules Act had as its goals the reform of the German civil procedure remedy system, the development of a more consumer-friendly, efficient and transparent civil procedure, the encouragement of faster trials and the increase of court-directed settlements. It is still too early for ...


Justice For Some - U.S. Efforts Under Article 98 To Escape The Jurisdiction Of The International Criminal Court, Cosmos Eubany Jan 2003

Justice For Some - U.S. Efforts Under Article 98 To Escape The Jurisdiction Of The International Criminal Court, Cosmos Eubany

Hastings International and Comparative Law Review

In April 2002, ten countries ratified the Rome Statute and deposited their instruments with the United Nations. These actions brought the International Criminal Court into force with over sixty ratifications. A month later, the United States declared that it no longer intended to pursue ratification of the treaty and asked to remove its signature from the statute. The United States then launched a campaign to ensure that its nationals would not fall within the jurisdiction of the Court. To ensure that the ICC does not gain jurisdiction over its nationals under any circumstance, the United States is currently seeking "non-surrender ...


The European Union V. The North Atlantic Treaty Organization: Estonia's Conflicting Interests As A Party To The International Criminal Court, Barbi Appelquist Jan 2003

The European Union V. The North Atlantic Treaty Organization: Estonia's Conflicting Interests As A Party To The International Criminal Court, Barbi Appelquist

Hastings International and Comparative Law Review

The United States has requested that states party to the ICC sign agreements-referred to as Article 98 treatiesexempting U.S. citizens from ICC jurisdiction. The EU has opposed Article 98 treaties on the grounds that they threaten the legitimacy of the ICC. This note evaluates the conflicting political pressure exerted on Estonia to either sign or refrain from signing an Article 98 treaty. Part One summarizes the theory of transplantation and how Estonia's relationships with the EU, NATO and the ICC have affected Estonia's international legal obligations and diplomatic options. Part Two analyzes Estonia's relations with the ...


Intellectual Property Collaboration Stresess In Bankruptcy: Protecting The Rights Of The Nonbankrupty Parties, Jeffrey M. Levinson Jan 2003

Intellectual Property Collaboration Stresess In Bankruptcy: Protecting The Rights Of The Nonbankrupty Parties, Jeffrey M. Levinson

Hastings Law Journal

One consequence of the technology explosion in the last decade was the dominance of a wide variety of commercial technology collaborations and alliances. As parties to those alliances are discovering in the current recession, the bankruptcy of one party to those transactions can create serious problems for other parties, especially with respect to the relevant intellectual property rights. Trustees in bankruptcy and bankruptcy lawyers are learning how to exploit vulnerabilities in the structure of collaborations to the growing distress of the intellectual property and technology community. This Note addresses some of the legal and practical issues that arise in these ...


Where Involuntary Commitment, Civil Liberties, And The Right To Mental Health Care Collide: An Overview Of California's Mental Illness System, Meredith Karasch Jan 2003

Where Involuntary Commitment, Civil Liberties, And The Right To Mental Health Care Collide: An Overview Of California's Mental Illness System, Meredith Karasch

Hastings Law Journal

This Note provides an overview of California's mental health care system. It discusses the history of the civil liberty movement as it pertains to mental health care and its impact on the current system. The Note argues that the present system is inadequate because of the obstacles to obtaining treatment and, when it is available, the poor quality of mental health care. This Note also explores the societal consequences of the current system and offers some alternatives.

This Note does not argue for confinement without cause or without safeguards. Rather, in an effort to throw some light on a ...


Hearing Voices: Speaker Identification In Court, Lawrence M. Solan, Peter M. Tiersma Jan 2003

Hearing Voices: Speaker Identification In Court, Lawrence M. Solan, Peter M. Tiersma

Hastings Law Journal

Many of the problems that people have identifying speakers solely by their voices are similar to those that people have as eyewitnesses. The amount of exposure, the nature of the identification process, and the number of exposures all matter in determining how likely a witness is to make a correct identification. Yet while the reliability of eyewitness identification has been a focal point in the news, scholarly literature, and the courts, the reliability of earwitness identification has gone virtually unnoticed in the case law and legal literature. The reluctance of the legal system to deal with this problem stems from ...


Practice What You Preach: California's Obligation To Give Full Faith And Credit To The Vermont Civil Union, Christopher D. Sawyer Jan 2003

Practice What You Preach: California's Obligation To Give Full Faith And Credit To The Vermont Civil Union, Christopher D. Sawyer

Hastings Law Journal

This Note evaluates the inter-jurisdictional effect of the Vermont Civil Union statute. A same-sex couple who enters into a civil union in Vermont currently enjoys all of the Vermont state benefits typically conferred only on married couples. The Federal Defense of Marriage Act ("DOMA") removes the burden on states of having to afford full faith and credit to same-sex marriages. As such, this Note discusses whether the DOMA is applicable to the Vermont Civil Union in addition to same-sex "marriages." Furthermore, this Note discusses whether California, if not obliged federally under the DOMA to recognize the civil union, is nonetheless ...


Privacy Property, Information Costs, And The Anticommons, Edward J. Janger Jan 2003

Privacy Property, Information Costs, And The Anticommons, Edward J. Janger

Hastings Law Journal

No abstract provided.


Did Privacy Cause Identity Theft?, Lynn M. Lopucki Jan 2003

Did Privacy Cause Identity Theft?, Lynn M. Lopucki

Hastings Law Journal

No abstract provided.


The Price Of Macroeconomic Imprecision: How Should The Law Measure Inflation?, Jim Chen Jan 2003

The Price Of Macroeconomic Imprecision: How Should The Law Measure Inflation?, Jim Chen

Hastings Law Journal

Because no economy is forever free from price change, a legal system that seeks to maintain its vitality across the full range of macroeconomic conditions must adopt a proper measure of inflation. In areas such as taxation, economic regulation, and private contracting, the law's response to inflation constitutes a policymaking opportunity in its own right. In campaign finance and judicial compensation, the legal treatment of inflation may have constitutional consequences.

In spite of inflation's profound ramifications for the law, federal law has taken a seemingly haphzard approach toward its measurement. Federal statutes specifying one price index strongly favor ...


"Muslim Rage" And Islamic Law, Wael B. Hallaq Jan 2003

"Muslim Rage" And Islamic Law, Wael B. Hallaq

Hastings Law Journal

In this Lecture, it is argued that a significant factor behind the recent rise of so-called Islamic "fundamentalism," in both of its violent and nonviolent forms, is the structural uprooting of the Islamic legal institutions during the middle of the nineteenth century and thereafter (a factor neglected by analysts). When the colonialist powers induced western legal "reforms" that came to displace traditional and indigenous Islamic law, little did they realize that such a process of aggressive change was in the long run to lead to both brutal military dictatorships (during the past half century) and, more recently, to violent reactions ...