Digital Commons Network^™

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 …

Televising California's Death Penalty: Is There A Constitutional Right To Broadcast Executions, Jeff Angeja

UC Law Journal

Any discussion of capital punishment sparks heated debate regarding not only the merits of capital punishment, but also the humanity of particular modes of execution and the efficiency and justice of the last minute appeals process. The electronic media has added a further component to this debate: Is there a First Amendment right of access to the execution chamber that would allow the electronic media to videotape an execution for subsequent viewing? If current death penalty statutes remain in effect, then this perplexing issue may represent one of the most controversial death penalty issues.

This Note first examines the criteria …

A Reexamination Of The Non-Dischargeability Of Criminal Restitutive Obligations In Chapter 13 Bankruptcies, Ann Haberfelde

UC Law Journal

In 1990, the Supreme Court held that criminal restitution was dischargeable as a debt in a Chapter 13 bankruptcy proceeding. Congress subsequently amended the bankruptcy laws to exclude criminal restitution from the debts dischargeable in Chapter 13 proceedings.

This amendment represents the elevation of the states' interest in their criminal laws at the expense of the policies served by the bankruptcy laws. By tracing the origins of criminal restitution as a form of punishment, examining the development of bankruptcy discharge policy, and considering the interrelation of state and federal laws, this Note proposes a more equitable solution. Rather than viewing …

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 …

Sentencing Guidelines And Mandatory Minimums: The Need For Separate Evaluation, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Sentencing Guidelines And Mandatory Minimums: Mixing Apples And Oranges, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Graffiti, Gang Prevention. Sales Tax.

Initiatives

GRAFFITI, GANG PREVENTION. SALES TAX. INITIATIVE STATUTE. Establishes Anti-Graffiti and Gangs Program. Program Director appointed by Governor. Imposes additional sales tax of $1.00 per specified pressurized container and container of marking substance; 10 per specified marker. Establishes California Anti-Graffiti and Gangs Account, for tax revenue which is disbursed for purposes of anti-graffiti and gang programs: 35% to local government, 20% to local law enforcement, 20% to schools, 15% to paid advertising, 6% to local community organizations, 2% for administration, 1% to higher education, and 1% for graffitibuster awards. Increases penalties for graffiti vandalism; specifies minimum jail time and community service. …

Jose Zalaquett, Jose Zalaquett

Mathew O. Tobriner Memorial Lectures

No abstract provided.

Divided We Stand: State Constitutions In A More Perfect Union, Shirley S. Abrahamson

UC Law Constitutional Quarterly

No abstract provided.

Abandoning The Rule Of Non-Inquiry In International Extradition, David B. Sullivan

UC Law SF International Law Review

Under the rule of non-inquiry, a United States court is barred from denying extradition of an accused criminal, even when it is clear that the accused will be the victim of torture or cruel and inhumane treatment in the requesting country. This Note argues that the rule of non-inquiry should be replaced by a rule more.sensitive to humanitarian concerns. The Note begins by describing the international extradition process and the origins of the rule of non-inquiry. Next, it sets forth the dicta of Gallina v. Fraser, which proposed an exception to the rule of noninquiry. The Note suggests that an …

A Harvest Of Shame: The Imposition Of Independent Contractor Status On Migrant Farmworkers And Its Ramifications For Migrant Children, Jeanne M. Glader

UC Law Journal

A recent trend in the American agricultural industry is the practice among growers of classifying farm workers as independent contractors rather than employees. The Fair Labor Standards Act was enacted by Congress in 1938 to eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and well-being of workers. The Act's protections specifically include workers' compensation insurance, health and safety standards, unemployment and disability insurance, and perhaps most importantly, prohibitions against oppressive child labor. Under the terms of the Act, however, only employees are covered by the legislation, not independent contractors. Because …

Soviet And Chinese Criminal Dissent Laws: Glasnost V. Tienanmen, Zach Georgopoulos

UC Law SF International Law Review

Recent developments in the People's Republic of China and the Soviet Union warrant a comparative study of the imposition of criminal liability for political dissent. In the Soviet Union, substantive changes in criminal dissent laws seem dramatic. In China, various doctrinal pronouncements may have a great effect on the application of such laws. This Note analyzes the similarities and differences in the current political imperatives of both nations in relation to their criminal laws, and attempts to discern possible future uses of criminal law as a means of suppressing political speech.

Teague And Death: The Impact Of Current Retroactivity Doctrine On Capital Defendants, David R. Dow

UC Law Constitutional Quarterly

No abstract provided.

The Criminalization Of Belief: When Free Exercise Isn't, Edward Egan Smith

UC Law Journal

In Walker v. Superior Court, the California Supreme Court held that the criminal prosecution for involuntary manslaughter and felony child endangerment of a mother who withheld orthodox medical treatment from her ill child based on her religious beliefs did not violate free exercise. Citing the United States Supreme Court's doctrinal distinction between the absolute protection of religious beliefs and the qualified protection afforded religious conduct, the court characterized such criminal prosecutions as constitutional restrictions on religious conduct. This Note argues that the Walker court was wrong. Because the court held that an express exemption for spiritual treatment in section 270 …

Exorcising Langdell's Ghost: Structuring A Criminal Procedure Casebook For How Lawyers Really Think, Andrew E. Taslitz

UC Law Journal

First established by Christopher Columbus Langdell in the late nineteenth century, the case-method of legal education has been the subject of increasing criticism in recent years. Professor Taslitz joins the battle against the case-method, but from a slightly different vantage point. His Essay focuses not on what law professors do in the classroom, but instead examines the primary tool that they use: the casebook. In order to understand the traditional casebook's failings, Professor Taslitz critiques one of the newest and best criminal procedure casebooks on the market, Criminal Procedure: Constitutional Constraints Upon Investigation and Proof, by Welsh White and James …

Elder Abuse And The States' Adult Protective Services Response: Time For A Change In California, Audrey S. Garfield

UC Law Journal

Most Americans would be shocked to learn that an estimated five percent, or 1.5 million, elderly Americans regularly are victims of abuse. In California there were 12,000 reports of abuse during 1986-1987, a forty-five percent increase in reports from the previous year. With the rapid growth of the elderly population and of the numbers of abused elders nationwide and particularly in California, elder abuse, as well as other problems peculiar to this population, demand and deserve greater attention and resources.

This note explores the scope of the elder abuse problem and reviews states' reponses to the problem in domestic and …

The New Habeas, Kathleen Patchel

UC Law Journal

During its 1990 Term, the United States Supreme Court developed a new retroactivity doctrine that, in effect, destroys independent federal habeas review of state prisoners' constitutional claims in situations other than those involving lack of jurisdiction or failure of process in state court. This new retroactivity doctrine marks the culmination of the Court's trend toward denying federal habeas review of state prisoners' claims in favor of finality of state court determinations. In this Article, Professor Patchel explores the process by which the Burger and Rehnquist Courts developed doctrines restricting the scope of habeas review in the face of Warren Court …

Constitutional Limits On Using Civil Remedies To Achieve Criminal Law Objectives: Understanding And Transcending The Criminal-Civil Law Distinction, Mary M. Cheh

UC Law Journal

Recent years have seen a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies-such as injunctions, forfeiture, restitution, and civil fines-in addition to, or in lieu of, traditional criminal penalties. Two prominent examples are the widespread use of forfeiture in drug cases and the use of divestiture and treble damage judgments in civil RICO actions. A hallmark of Anglo- American jurisprudence for centuries, the basic division between civil and criminal matters appears to be collapsing. The distinction remains important, however, because, in addition to being a means for punishing specific individuals, criminal proceedings are official ceremonies …

The Future Of Legal Ethics, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Judicial Discretion In Sentencing, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Michigan Department Of State Police V. Sitz: A Roadblock To Meaningful Judicial Enforcement Of Constitutional Rights, Nadine Strossen

UC Law Journal

In Michigan Department of State Police v. Sitz, the Supreme Court rejected a fourth amendment challenge to mass, suspicionless searches and seizures at drunk driving roadblocks. In this Article, Professor Strossen analyzes the longrange constitutional impact of Sitz. She argues that the decision epitomizes the Court's recent tendency to eliminate the traditional fourth amendment requirement that any search or seizure of an individual must be based upon a particularized suspicion that the individual has committed, or is about to commit, a crime. The Article then shows how Sitz embodies two more general, interrelated trends in the Rehnquist Court's construction of …

First Prize: Perry V. Louisiana, Leslie Bishop, Elizabeth Fleishman

David E. Snodgrass Moot Court Competition

No abstract provided.

Hastings Law News Vol.23 No.8, Uc Hastings College Of The Law

Hastings Law News (1969/70-2001/02)

No abstract provided.

Children's Services. Appropriations. Surtaxes.

Initiatives

CHILDREN'S SERVICES. APPROPRIATIONS. SURTAXES. INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE. Amends constitution to create Young Children's Rightstart Fund; exempts fund appropriations from school funding priorities; tax and spending limitations. Establishes Children's Commission; enacts Children's Rights Act; imposes additional tax on personal income commencing tax year 1990: additional 2.5 percent on individual taxpayers with adjusted gross income above $200,000; additional 3.0 percent over $400,000. Rightstart Fund proceeds to Commission for disbursement after legislative approval as supplemental funds for: 4 percent for Children's Commission; 35 - 45 percent children's health services; 20 - 30 percent child abuse, other programs; 35 - 45 percent …

Shirley S. Abrahamson, Shirley S. Abrahamson

Mathew O. Tobriner Memorial Lectures

No abstract provided.

Drug Enforcement And Prevention. Taxes. Prison Terms.

Propositions

DRUG ENFORCEMENT AND PREVENTION. TAXES. PRISON TERMS. INITIATIVE STATUTE. • Establishes Safe Streets Fund in State Treasury. • Appropriates funds in account for Anti-Drug' Education (42%); Anti-Drug Law Enforcement·(40%); Prisons and Jails (10%); Drug Treatment (8%). • Increases state sales and use taxes 1/2 cent for four years starting July 1, 1991; increased funds transferred to Safe Streets Fund. • Limits state administrative expenses to 1%. • Prohibits early release of persons convicted twice of: murder; manslaughter; rape or sexual assault; mayhem; sale, possession for sale, drugs to minors on schoolgrounds or playgrounds; using minors to sell or transport drugs. …

A New Perspective On The Judicial Contempt Power: Recommendations For Reform, Louis Raveson

UC Law Constitutional Quarterly

No abstract provided.

Criminal Law.

Propositions

INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE. Amends state Constitution regarding criminal and juvenile cases: affords accused no greater constitutional rights than federal Constitution affords; prohibits post-indictment preliminary hearings; establishes People's right to due process and speedy, public trials; provides reciprocal discovery; allows hearsay in preliminary hearings. Makes statutory changes, including: expands first degree murder definition: increases penalty for specified murders; expands special circumstance murders subject to capital punishment: increases penalty for minors convicted of first degree murder to life imprisonment without parole; permits probable cause finding based on hearsay; requires court to conduct jury examination. Summary of Legislative Analyst's estimate of …

Drug Enforcement, Prevention, Treatment, Prisons. Bonds.

Propositions

DRUG ENFORCEMENT, PREVENTION, TREATMENT, PRISONS. BONDS. INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE. • Statutory changes: commencing 1991, appropriates up to $1.9 billion over next eight years to state, county, city governments for drug enforcement, treatment, and gang related purposes. • Authorizes issuance of $740,000,000 of general obligation bonds for drug abuse, confinement, and treatment facilities. • Amends state Constitution to provide that specified provisions relating to rights of criminal defendants do not abridge right to privacy as it affects reproductive choice. Summary of Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact: • No additional revenues result from this …

New Prison Construction Bond Act Of 1990-B

Propositions

NEW PRISON CONSTRUCTION BOND ACT OF 1990-B. This act provides for a bond issue of four hundred fifty million dollars ($450,000,000) to provide funds to relieve overcrowding in the state's prisons and the Youth Authority facilities through new construction.