Digital Commons Network^™

Immigration Law: The Immigration Consequences Of Criminal Activity, Genevieve Hebert Fajardo, Lorelei Ritchie

Faculty Articles

Immigration laws in the United States may affect prisoners, possibly resulting in deportation. Some convicted prisoners who are aliens may be subject to deportation dependent upon the government’s ability to prove by clear, unequivocal, and convincing evidence that they fall into a deportable category. Providing prisoners with sufficient knowledge and answers to potential deportation questions stemming from criminal convictions may delay and thwart these proceedings.

By beginning with a categorization of the different types of immigrants in this country, a convicted prisoner will be better able to determine for themselves whether they are subject to deportation. If they are, this …

Multiple Unities In The Law, Emily A. Hartigan

Faculty Articles

In a world newly in touch with its diversity, ethics must struggle with the impact difference has on coherence. There is a crucial dilemma more profound than how to avoid violating the canons of ethics, or how to dodge disciplinary proceedings. For the lawyer in a world of plural ethics—the dilemma posed by the primary tension in ethics today between reason and spirit.

There are multiple unities of meaning in which a lawyer works, a sort of multijurisdictionalism. These multiple unities, these many worlds, are emblematic of a time in which people are recognizing that multiculturalism is not a trendy …

Some Tips On Using Collaborative Exercises, Paula Lustbader

Faculty Articles

This article outlines the teaching method of collaborative learning, which is apparently effective but difficult to properly administer. It provides teachers with a variety of ways to effectively employ this method.

Signal Detection Theory And Single Observation Designs: Methods And Indices For Advertising Recognition Testing, Dennis J. Cradit, Armen Tashchian, Charles F. Hofacker

Faculty Articles

Two simulations assessed the statistical bias, consistency, and efficiency of 4 different signal detection theory (SDT) sensitivity measures; a corrected-hit probability, the traditional d′ statistic, and 2 nonparametric measures collected from a collapsed-data procedure. Overall, results reinforce evidence that collapsed procedures produce relatively unbiased and efficient estimators. Recommendations for the best approach to using SDT for advertisement recognition testing are offered.

Standing Firm, On Forbidden Grounds, Richard A. Epstein

Faculty Articles

The Articles contained in this issue are the outgrowth of the Symposium sponsored by the University of San Diego School of Law, and the Liberty Fund on my book, Forbidden Grounds: The Case Against Employment Discrimination Laws. It should be evident that these Articles express a good deal of disagreement with the thesis that I propounded in that book; namely, that the antidiscrimination laws which prohibit employer discrimination on the grounds of race, creed, sex, age, handicap, or indeed anything else, should be removed from the statute books insofar as they apply to private employers in competitive markets. I argued …

What's Past Is Prologue: Precedent In Literature And Law, Kenji Yoshino

Faculty Articles

This Note argues that the law-and-literature movement can shed light on the manner in which the Casey opinions treat precedent. Part I provides the theoretical background to a comparison of precedent in law and literature. First, it briefly situates this Note in the law-and-literature movement; second, it outlines two theories concerning the treatment of precedent, one from literature (Harold Bloom's "anxiety of influence") and one from law (stare decisis); finally, it describes a prior attempt by David Cole to apply the anxiety of influence to the legal field. Part II critiques Cole's theory and shows how the remainder of this …

Avoiding Balancing: The Role Of Exclusionary Reasons In Constitutional Law, Richard H. Pildes

Faculty Articles

Contemporary constitutional law presents most constitutional conflicts as ones between individual rights and state interests. The central role that metaphors of judicial balancing play in modern constitutional decision making emerges from organizing constitutional conflicts in these terms. When rights and state interests, each with their claim to legitimacy, are perceived to be in collision, we are compelled toward "weighing" the "strength" of state interests against the "degree" of intrusion on individual rights. "Balancing" becomes the principle technique of judicial decision. This dominant modern technique, however, raises as many questions as it answers. How do courts "balance" seemingly incommensurable entities, such …

Deliberate Indifference: Judicial Tolerance Of Racial Bias In Criminal Justice, Bryan A. Stevenson, Ruth E. Friedman

Faculty Articles

It seems unimaginable that the Supreme Court, an institution vested with the responsibility to achieve "equal justice under the law" for all Americans, could issue an opinion that accepted the inevitability of racial bias in an area as serious and final as capital punishment. However, it is precisely this acceptance of bias and the tolerance of racial discrimination that has come to define America's criminal justice system. The last thirty years have seen remarkable changes in America's relationship with people of color. The civil rights movement has ushered in significant developments in antidiscrimination law and has profoundly affected the status …

Fake Incommensurability: A Response To Professor Schauer, Jeremy Waldron

Faculty Articles

Professor Frederick Schauer's article raises the intriguing possibility that a view about the commensurability of values might be selected on some basis other than the truth about values and their commensurability. For example, even if we are fairly sure that the values embodied in the First Amendment are of the same kind as the values embodied in our assessments of social progress and economic efficiency, we might choose nevertheless to adopt the view that the values involved are quite different and that First Amendment values must not be balanced against considerations of progress or efficiency, but must be given absolute …

Formation Of Contracts In South American Legal Systems, Franco Ferrari

Faculty Articles

Practitioners -- of comparative law focus their attention mainly on Western European, Eastern European, and common law legal systems. This focus excludes South American systems, which will be discussed in this Article. South American legal systems are nearly all considered to be civil law systems. These systems are based upon various European codes, including the French Code Civil and the German Birgerliches Gesetzbuch. Laws governing the formation of contracts are no exception. In fact, this is an area where it is particularly easy to identify codes that inspired the legal systems under review. By doing so, this Article will first …

Federalism's Future In The Global Village, Barry Friedman

Faculty Articles

The challenge here is to begin to develop an understanding of globalization's impact upon the American federal system. Part of developing that understanding is getting an idea of how globalization is proceeding, and the impact it likely will have on state regulatory authority. Thus, Part I of this Article describes the process of globalization as it relates to federalism concerns. Then, Part II samples some of the multitude of state regulatory areas that globalization, in one way or another, likely will affect. Next, it is useful to compare the legal framework under which federalism concerns are addressed when domestic regulation …

Snake Pits And Unseen Actors: Constitutional Liability For Indirect Harm, Julie Shapiro

Faculty Articles

The purpose of this article is to find order amidst the chaos that predominates in analysis of indirect harm cases. It is the author’s hope that such an effort will assist courts, scholars, and advocates who continue to be confronted by these cases, as well as identify a focused agenda for future commentary, inquiry, and action.

Donoghue V. Stevenson's 60th Anniversary, Franco Ferrari

Faculty Articles

On 26 May 1932, the House of Lords decided a case that has been defined not only as "revolutionary" and "[the] single most important decision in the history of the law of torts", but even as the "most important decision in all the common law". Of course, one refers to the so called "Snail Case" or "Snail in the Ginger Beer Case", i.e., to Donoghue v. Stevenson which has not only influenced English product liability law but (above all) the English law of torts.

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Faculty Articles

In this essay, therefore, I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for …

The Moral And Practical Dilemmas Of An Underground Economy, Richard A. Epstein

Faculty Articles

All sorts of activities, some desirable and some unsavory, are part of the underground economy. The physician who takes cash for a Saturday office visit is working off the books; so is the waiter who reports some but not all tips as income; so too is the maid who pays no taxes on her wages. But the underground economy is far more vast than these examples suggest, for it embraces much more than the unreported, unrecorded, or informal economy. It includes industries that rely on illegal aliens and businesses that are completely outlawed, such as the trade in narcotic drugs. …

Courts, Covenants, And Communities, Clayton P. Gillette

Faculty Articles

In this Article, I argue that nonconstitutional doctrines also reflect our ambivalence about decentralized communities. My interests here lie in judicial review of the efforts of residential associations, primarily homeowners associations, to define their members' lifestyles in ways akin to the use of ordinances by traditional local governments. Local governments assume identities by selecting a particular basket of goods and services at particular tax prices, and then regulating the activity of those who are attracted by the goods and services offered. Yet the size of contemporary cities, combined with legal doctrines and political obstacles that prevent localities from differentiating among …

The What And Why Of The New Discovery Rules, Rochelle C. Dreyfuss

Faculty Articles

To those who study the evolution of law, the recent amendments to the discovery provisions of the Federal Rules of Civil Procedure (Federal Rules) provide a unique opportunity. In recent years, significant attempts have been made to reduce the hegemony of the Advisory Committee on Civil Rules (Advisory Committee) as the source of all change in federal procedure. For example, the 1988 Judicial Improvements and Access to Justice Act required that Advisory Committee meetings and minutes be open to the public, thereby facilitating public input into rulemaking. The 1990 Civil Justice Reform Act shifted some authority over rulemaking to the …

Uniform Interpretation Of The 1980 Uniform Sales Law, Franco Ferrari

Faculty Articles

The origin of the industrialized nations' need to comply with a specific economic policy designed to "transcend national borders in order to maximize the utilization of resources" originated from the consequences of the Industrial Revolution and, more specifically, from over-production due to the ensuing industrial growth. This economic policy "required a correspondent legislative policy able to regulate the economic relationships: this policy, not unlike the economic Policy, had to cross national borders." It is for this reason that since the end of the last century and with increasing intensity since the beginning of this century, efforts have been made to …

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy A. Hertz

Faculty Articles

This article discusses the harmless error standard of the U.S. Supreme Court for habeas corpus cases. The Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under the rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. In the decision on the case Brecht …

Future Nonadvance Obligations: Preferences Lost In Metaphor, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Autonomy And Privacy: Protecting Patients From Their Physicians, Mary Anne Bobinski

Faculty Articles

Whom do physicians serve first: themselves, their patients, insurers, or society-at-large? This article constitutes the first scholarly exploration of the legal system's sometimes conflicting attempts to resolve this issue in the context of provider-associated risk. Courts and commentators are reflexively reacting to physician risks by uprooting and transplanting regulatory concepts from other areas, often without considering either the legal basis or the likely consequences for patients, physicians and society. In fact, these risks require a novel, and to some extent counterintuitive, judicial and legislative response.

There is a new perception that patients can be injured by physician self-interest. Part II …

Criminalization Of An Epidemic: Hiv-Aids And Criminal Exposure Laws, Michael L. Closen, Mary Anne Bobinski, Donald H.J. Herman, John F. Hernandez, Gene P. Schultz, J. Kelly Strader

Faculty Articles

Unfortunately, the HIV-AIDS epidemic is still out of control. According to federal esti­mates, another American becomes infected with HIV every thirteen minutes; consequently, eight people in the United States will contract HIV during the course of this program. Many individuals have been prosecuted and convicted for exposing others to HIV and in rare circum­stances for actually transmitting HIV to others. These cases have involved activities such as bit­ing, spitting, throwing bodily substances, and sexual conduct.

Serious questions have been raised about some of the prosecutions as well as the HIV-specific criminal statutes which have been adopted. This discussion will address …

Comparing The United States Warehouse Act And U.C.C. Article 7, Drew L. Kershen

Faculty Articles

No abstract provided.

Separating Prejudice From Rationality In Equal Protection Cases: A Legacy Of Thurgood Marshall, Harry F. Tepker

Faculty Articles

No abstract provided.

A Thrice-Told Tale, Or Felix The Cat, Michael S. Ariens

Faculty Articles

Few legal scholars would dispute the constitutional, historical, and political importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judiciary, ultimately approved a sweeping interpretation of governmental authority to implement socioeconomic legislation. The course of events, although frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine."

Felix Frankfurter arguably played a pivotal role in disseminating a particular history of the events of 1937. Reversing his own privately expressed position of dismay …

Wouldn’T You Like To Be An Expert, Too?, Michael S. Ariens

Faculty Articles

It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a …

Between The Buttons: Employer Distribution Of Antiunion Insignia, John W. Teeter Jr

Faculty Articles

Employers should be forbidden from offering antiunion insignia to their workers. This is not contrary to current labor rules that allow employers and their supervisors to wear insignia. The workers' rights would still be safeguarded because employees would remain free to buy or create their own antiunion insignia. The goal is to protect the right of workers to debate, campaign, and vote on unionization with no harm to legitimate needs for self expression.

Generally, workers are entitled to wear campaign insignia regardless of whether it supports or decries unionization. In this manner, workers can openly proclaim their beliefs and seek …

Upon Leaving A Firm: Tell The Truth Or Hide The Ball, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Over the last fifteen years, two divergent common law views have emerged regarding the enforceability of noncompetition clauses between attorneys. The first is exemplified by two Oregon appellate cases and the landmark New York Court of Appeals’ decision, Cohen v. Lord, Day & Lord, whereby noncompetition clauses between attorneys were found void as against public policy. The second adopts a contrary opinion, questioning the conventional wisdom that those who seek legal advice must be afforded the broadest possible choice of counsel.

At present, a balancing test is used to reject the per se impermissibility of noncompetition clauses between lawyers. However, …

Rate Regulation At The Crossroads Of Usury And Unconscionability: The Case For Regulating Abusive Commercial And Consumer Interest Rates Under The Unconscionability Standard, Steven W. Bender

Faculty Articles

This article builds on the argument that the usury solution is flawed and urges a compromise between usury and market control that employs the variable fairness standard of unconscionability to police unfair interest pricing. The article examines American and comparative usury and unconscionability regulation to develop appropriate guidelines for unconscionability's new duty. It then proposes a model statute articulating the unconscionability standard for consumer loans. Finally, the article advocates employing usury controls under a limited regime of "spot treatment," rather than blanket control, for persisting pockets of lender abuse the unconscionability standard may fail to deter.

Redefining The Sixth Amendment, John B. Mitchell

Faculty Articles

This article compares public defenders in lower courts with public defenders in superior courts across the country. The article concludes that lower criminal courts suffer from problems of funding and resource allocation and that these issues must be addressed before they can adequately administer justice.