Law Commons^™

The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey

San Diego Law Review

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …

Electronic Data Discovery Sanctions: The Unmapped, Unwinding, Meandering Road, And The Courts’ Role In Steadying The Playing Field, Ahunanya Anga

San Diego Law Review

This Article highlights a growing problem for litigants who are involved in electronic data discovery (EDD). The world of litigation today encompasses massive amounts of electronically produced documents. It is estimated that ninety-nine percent of new information is created and stored electronically. The litigation practice generally, as it relates to electronic discovery (e-discovery) particularly, has mushroomed into a chaotic process. The technological age has radically impacted the federal discovery process. The purpose of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP) was, among other things, to address problems associated with electronically stored information (ESI) that arise during …

The 2000 Federal Civil Rules Revisions, Carl Tobias

San Diego Law Review

The first section of this Essay surveys the historical background of the 2000 group of amendments to the Federal Rules of Civil Procedure. The second portion of the Essay selectively evaluates the most contested and important constituents of the package of revisions and analyzes the effects that federal district court implementation of the 2000 amendments alone and together will apparently have. Ascertaining that several modifications are somewhat controversial and that, individually or in combination, they could have relatively significant impacts, the third segment affords suggestions for future action that members of the legislative and judicial branches, lawyers and parties should …

A Primer On The Civil Trial Of A Sexually Violent Predator, Joan Comparet Cassani

San Diego Law Review

Involuntary commitment' for sexually violent predators became the law in California in 1996. This law, the Sexually Violent Predator Act, provides for a civil jury trial.! This trial is unique, since some of the procedural protections afforded a criminal defendant apply. For example, a unanimous jury must find, beyond a reasonable doubt, that the individual is a sexually violent predator.

The Act provides for the treatment of the individual if committed, and carefully crafts the procedures for the mental health evaluation and review process. Unfortunately, the part of the statute that provides for the civil trial is not as tightly …

A Tale Of Two Counties: Divergent Responses In Los Angeles And Orange County Superior Courts To The Ban On Electronic Recording In California Court Reporters Ass'n V. Judicial Council, Glenn S. Koppel

San Diego Law Review

This Article explores the authority of superior courts to use electronic recording technology to make a verbatim record of superior court proceedings-without express statutory authorization-in the aftermath of the CCRA decisions. Rather than just arguing that the CCRA decisions were wrongly decided, this Article explores ways to narrowly construe the CCRA opinions to permit superior courts and their litigants to use rapidly evolving electronic recording technologies as an alternative to traditional stenographic court reporting.

California’S Confusing Collateral Estoppel (Issue Preclusion) Doctrine, Walter W. Heiser

San Diego Law Review

This Article discusses two related problems regarding the scope of the collateral estoppel doctrine applied by the California courts. Both problems concern the determination of whether issues were “actually litigated and determined” by a prior judgment. Both implicate the tension between the desire to achieve judicial economy on the one hand, and the right of a party to a fair opportunity for a full adversary hearing on an issue on the other. The next section of Part I examines the policies underlying the preclusion doctrines, and explains how clear issue preclusion rules applied in an underinclusive manner further these policies. …

Attorneys' Fees For Contractual Non-Signatories Under California Civil Code 1717: A Remedy In Search Of A Rationale, Robert S. Miller

San Diego Law Review

California courts have altered the American Rule for attorney’s fees in contract actions pursuant to California Civil Code Section 1717, which makes contractual fee shifting provisions reciprocal. The Author illustrates some of the problems with this section and how it has led to inequitable and unpredictable results. This Article argues that the statute should be revised in order to clarify that contractual fee-shifting applies only to signatories to the contract.

Central Pathology Service Medical Clinic, Inc. V. Superior Court: Statute Limiting Punitive Damages For The Professional Negligence Of Health Care Providers Includes Intentional Torts, Russell A. Gold

San Diego Law Review

In the 1992 decision of Central Pathology Service Medical Clinic, Inc. v. Superior Court the California Supreme Court held that every plaintiff injured by a health care provider must comply with section 452.13 of the California Civil Procedure Code, provided the injuries are directly related to the provision of professional services. Section 452.13 requires a pretrial determination of whether a punitive damage claim has a substantial probability of prevailing. This statute also applies to intentional torts, in which the plaintiff is injured by treatment to which the plaintiff did not consent. This Casenote analyzes whether additional procedural obstacles are warranted …

Collateral Estoppel - Corporation Collaterally Estopped From Relitigating Issue Adjudicated In Prior Criminal Conviction Of Its President (Teitelbaum Furs, Inc. V. Dominion Ins. Co., Cal. 1962), James W. Brannigan Jr.

San Diego Law Review

In a criminal action Teitelbaum was convicted of conspiracy to commit grand theft, attempted grand theft, and the presentation and filing of false insurance claims as a result of a fake robbery of a corporation of which he was president and controlling stockholder. The corporation brought a subsequent action to recover on insurance policies for losses allegedly sustained in the same robbery. At the trial it was conceded that the corporation was Teitelbaum's alter ego. Held: The prior criminal conviction of Teitelbaum for attempt to defraud the insurer operated as a bar to the corporation's action under the policies. Teitelbaum, …

Findings Of Fact, James M. Carter, Bruce V. Wagner

San Diego Law Review

To many of us rules of procedure are nebulous and for that reason we emphasize substantive rules of law even though most of us know the importance of the former. The authors hope in the following material to remove some of this cloudiness from one limited phase of procedure, that of "fact finding." This article is meant to be of assistance to trial judges on whom the final responsibility for preparation of the findings rests. It is also aimed at counsel who may assist in the preparation or who may object to the findings made by the court. Lastly, students …