Law Commons^™

Compulsory Judicial Arbitration In California: Reducing The Delay And Expense Of Resolving Uncomplicated Civil Disputes, R. J. Heher

UC Law Journal

In general, judicial arbitration involves the transfer of pending civil cases from the court to a volunteer attorney or panel of attorneys who determine the facts and the law according to relaxed rules of evidence and procedure. After reviewing six judicial arbitration plans, both voluntary and compulsory, the author concludes that there are strong measurable medications that judicial arbitration is faster and less expensive and is as fair as traditional civil litigation. The author argues that compulsory judicial arbitration is superior to the voluntary form and that California superior courts in the absence of legislation should adopt compulsory judicial arbitration …

Human Rights--An Issue For Our Time, Arthur J. Goldberg

UC Law Journal

The author, who was the U.S. Ambassador to the human rights conference, discusses the American tradition of support for human rights and its current efforts to persuade other countries to accept these principles.

Theory And Reform Of Criminal Law, Jerome Hall

UC Law Journal

The author discusses the theory and classification of legal principles and the application of this methodology to present problems in the criminal law. He then surveys some of the major problems in California criminal law including diminished capacity, felony-murder, and the general/specific intent dichotomy, as well as discusses a number of miscellaneous problems that require clarification. The author concludes by suggesting a practical method for approaching reform of the criminal code.

Justice In The Slough Of Equality, Julius Stone

UC Law Journal

The problem of how best to resolve "reverse discrimination" questions under the equal protection clause is currently receiving much attention. The author closely examines the widely accepted belief that equality is the same thing as justice. He demonstrates that there is no a priori or empirical justification for this identification and rejects it as an analytical touchstone whose usefulness is over. Something more flexible must be created to help define the relationship between "equal treatment' and "justice." In his analysis of equal protection clause case law, he demonstrates that equality, as a criterion of justice, is too inflexible to be …

Hindu Conceptions Of Law, Ludo Rocher

UC Law Journal

The author demonstrates through a historical survey of ancient texts, and the glosses of various pundits, that, although modern Hindu law is divorced from the holistic world view embodied by dharma, Hindu conceptions of law are derived from this encompassing term. Before the colonial period there was neither law nor religion; there was dharma.

Sixty-Five Club Members' Biographical Summaries, Uc Hastings College Of The Law

UC Law Journal

No abstract provided.

Human Rights And The Belgrade Meeting, Arthur J. Goldberg

UC Law Journal

Principle VII and Basket Three of the Final Act of the Helsinki Summit of 1975 expressed the commitment of the thirty-five states of Europe and North America to respect human rights and fundamental freedoms. The 1977-78 CSEA meeting at Belgrade put these issues firmly into the framework of East-West diplomacy. Justice Goldberg, Chairman of the United States Delegation to CSEA, examines the failure of the Soviet Union and Eastern Bloc nations to fulfill the promises of the Final Act through grave violations of human rights and the repression of those individuals seeking to enforce the provisions of the Final Act. …

Legal Malpractice And Compulsory Client Protection, Benjamin Franklin Boyer, Gary Conner

UC Law Journal

The authors discuss the need for a compulsory professional liability insurance plan for attorneys as a means of protecting members of the public from legal malpractice. The proposed plan would be on a claims-made basis by a public corporation. The authors suggest that such a plan would complete the present professional responsibility scheme, while benefiting both the profession and the public. The authors state that a Professional Liability Fund may be imposed through the inherent power of the court over attorneys or through the police power of the state.

Timber Capital Gains--The Option Rule Of Section 631(B), Philip F. Postlewaite

UC Law Journal

Section 631(b) of the Internal Revenue Code qualifies for capital gains treatment income derived from the disposition of timber by an owner who thereafter retains an economic interest in the timber. The Ninth Circuit Court of Appeals has interpreted the disposal requirement of this section as requiring a binding bilateral contractual arrangement between the parties in a timber cutting contract. This interpretation precludes timber cutting option agreements from qualifying for capital gains treatment under section 631(b). The author of this Article argues that the Ninth Circuits holding on tis point is in error and should be changed.

Covenants And Equitable Servitudes In California, Randall K. Steverson

UC Law Journal

In California, covenants running with the land are governed by two separate statutory provisions, Civil Code sections 1462 and 1468. If a covenant fails to run under the provisions of either section, it may still be enforced as an equitable servitude. This Note examines the interface of the statutory provisions with each other and with equitable servitudes.

Going Strong--A Hastings Tradition, Marvin J. Anderson, Sue Diamond Lifschiz

UC Law Journal

In this Article the authors pay tribute to the school's renowned Sixty-five Club, composed of famed legal scholars who have retired from other institutions and have made significant contributions during their second careers at Hastings. The Article traces the beginnings of the Club and highlights the accomplishments of its early members. The negative effects of mandatory retirement are discussed in the context of judicial and legislative treatment of the issue in recent years.

Religion, Law And Ethics--A Call For Dialogue, Jerome Hall

UC Law Journal

The interrelation of religion, ethics, and law raises a multiplicity of questions. Problems of professional and ethical responsibilities are the most obvious, but not necessarily the most profound; basic problems of theory in any interdisciplinary study tend to the most intractable. In Jerome Hall's introduction to this symposium, he calls for broadbased dialogue on the theoretical and practical problems presented by the topic, religion and the law. In conclusion, he expresses the hope that such dialogue will yield practical benefits for laymen as well as professionals in the clergy and the law.

The Chinese Conceptions Of Law: Confucian, Legalist, And Buddhist, Luke T. Lee, Whalen W. Lai

UC Law Journal

Concepts originating as religious principles have long had an impact on the structure and functioning of legal institutions in China. The authors isolate concepts from three major religious traditions and discuss their development, illustrating how they have had a lasting effect on the character of Chinese law.

Luther And The Law, Karl H. Hertz

UC Law Journal

In this Article, the author considers the characteristics of feudal Germany during the period of Luther's lifetime and, drawing on these observations, discusses Luther's philosophy regarding law and legal institutions. The author details three basic themes that underlie this element of Luther's thought: first, Luther's rejection of the right of retaliation in favor of objective judicial processes; second, Luther's assertion of the institutional independence of secular government from religious oversight and control but not from religious criticism; and finally, Luther's vision of a natural law that focused primarily upon the mutual interdependence of all humans.

In conclusion, the author notes …

Comparative Impairment And Better Law: Grand Illusions In The Conflict Of Laws, Leo Kanowitz

UC Law Journal

The Article examines the comparative-impairment theory adopted by the California Supreme Court in Bernhard v. Harrah's Club. Comparative-impairment, the author argues, is so imprecise and manipulable as to be largely indistinguishable from a search for "better law." Furthermore, the doctrine of comparative-impairment raises the serious jurisprudential and philosophical questions associated with natural law.

Jurisdictional Clauses In Consumer Transactions: A Multifaceted Problem Of Jurisdicion And Full Faith And Credit, Rudolf B. Schlesinger

UC Law Journal

A non-resident consumer confers jurisdiction on a creditor in a creditors' haven through a clause in their contract. The creditor obtains a default judgment in the haven which he attempts to execute in the consumer's highly protective home state. In this Article, Professor Schlesinger examines the federal due process, choice-of-law, and jurisdiction problems the creditor and consumer will face. He concludes that, even under the present state of the law, judgments based on such jurisdictional clauses are unlikely to be enforceable in the consumer's state.

Law And Religion In Contemporary Islam, Noel J. Coulson

UC Law Journal

Islamic scholar-jurists developed a purist doctrine of Islamic law which is found in an extensive body of Arabic literature known as the Shari'a manuals. The author describes the impact this doctrine has had on the Islamic legal system in the past and notes its lessening influence today in light of the changes in Islamic family law and Islamic jurisprudential thought in general.

Compelling Expert Testimony: A Proposed Statutory Reform, Richard R. Patch

UC Law Journal

The expert witness has been the subject of extensive recent commentary and legislative reform. The author investigates the nature of the controversy underlying the role of the expert witness in the modern judicial system and by means of historical analysis argues the need for a fundamental alteration in the concept of the expert witness. A statute is proposed to accomplish this reform.

Industrial Siting: Allocating The Burden Of Pollution, William G. Murray Jr., Carl J. Seneker Ii

UC Law Journal

The authors examine the problems of major-facility industrial growth in regards to environmental concerns and conclude that, due to a regulatory labyrinth, industrial development is a costly, risky, and sometimes impossible task. Their conclusion is that a master agency is needed to streamline and coordinate the siting of industrial facilities.

Uniformity Of Commercial Law And State-By-State Enactment: A Confluence Of Contradictions, E. Hunter Taylor Jr.

UC Law Journal

The Uniform Commercial Code appears to be following the course of most uniform laws in that as the years pass it is becoming less uniform. The causes of this decline in uniformity and important examples of nonuniformity that have arisen in Article 2 of the Code are discussed. The author concludes that greater uniformity cannot be attained with state-by-state enactment and that uniformity in commercial law can be created only through federal legislation.

Credit Scoring And The Equal Credit Opportunity Act, David C. Hsia

UC Law Journal

While credit-scoring systems have promoted more efficient and, arguably, more equitable extension of credit, the use of such systems by commercial lenders raises new and significant legal issues. In this Article, the author explains the formation and operation of credit-scoring; compares this method to the less precise, more subjective judgmental approach; and examines some of the legal issues inherent in the use of such systems.

The Right Of Eccentricity, Nicholas Heldt

UC Law Journal

Evolving principles of constitutional law prohibited state control of harmless behavior in O'Connor v. Donaldson. To prevent harm, a state may regulate or punish dangerous behavior, but the police power cannot accommodate control of harmless behavior. The Note examines the constitutional foundation for this limit upon the police power.

Military Medical Malpractice: Remedies For The Overseas Dependent, Jane Louise Stratton

UC Law Journal

Military dependent victims of medical malpractice committed by armed forces personnel in the United States may sue the federal government for damages under the Federal Tort Claims Act. By statutory wording and judicial interpretations this remedy is denied dependents living abroad and recovery is limited to an administrative claim under the Military Claims Act. The author discusses the development of this legal inequity, considers its present application and offers suggestions for legislative correction.

Vested Rights, Estoppel, And The Land Development Process, Richard B. Cunningham, David H. Kremer

UC Law Journal

In the field of land use planning the vested rights issue arises whenever a new law or regulatory procedure has the potential to interfere with the completion of a land development project already planned or being constructed. While development practices and land use controls have changed dramatically in recent years, the vested rights doctrine has changed little since the passage of comprehensive zoning ordinances more than fifty years ago. In this Article the authors survey the legal theories underlying the doctrine and the case law applying it. In conclusion they propose a reformulation of the vested rights rules that conforms …

Lugosi V. Universal Pictures: Descent Of The Right Of Publicity, Jon B. Eisenberg

UC Law Journal

The "right of publicity" provides celebrities with exclusive rights to the pecuniary value in their names and likenesses. A case presently before the California Supreme Court, Lugosi v. Universal Pictures, raises the question of whether this right should survive the death of a celebrity and descend to heirs. This Note examines the descent issue and concludes that the right of publicity should be descendible for a limited term of years.

The Need For A Reorientation In American Conflicts Law, Edgar Bodenheimer

UC Law Journal

The debate over the proper analytical approach to choiceof- law problems continues among American legal scholars. Beginning with analysis of Bernhard v. Harrahs Club, recently decided by the California Supreme Court, the author explores the evolution and current state of American conflicts theory, focusing in particular on Professor Currie's governmental interest approach. The author advocates a return to more concrete and predictable choice-of-law rules. Recognizing that serious injustice may result from application of such rules, nonetheless the author suggests that the courts develop principled exceptions to the substantive rules based upon the ancient Aristotelian doctrine of equity. Under this doctrine, …

California Lower Income Housing Policy: At Legislative And Judicial Crossroads, Dirk A. Fulton

UC Law Journal

California is experiencing an emerging lower income housing crisis which is aggravated by exclusionary land use regulations. This result occurs as California housing policy approaches a critical decisionmaking point before both the legislature and the judiciary. The author analyzes pending legislation, current statutes, and decisional law, including the recent Livermore case, regarding exclusionary land use regulations. The author concludes that continued resistance to inclusionary housing policy is intolerable and that the Livermore opinion can be applied so that lower income households are not denied equal access to affordable housing

I.R.C. Section 119: Is Convenience Of The Employer A Valid Concept, Adrian A. Kragen, Klonda Speer

UC Law Journal

Present interpretations of the Convenience of the Employer Rule, Section 119 of the Internal Revenue Code, allows a special privilege tax advantage to some employees while denying an exclusion from income to others similarly situated. The authors urge elimination of Section 119 from the Code or, in the alternative, adoption of a new test designed to eliminate the current inequities.

The Case For Abrogation Of Taxpayer Privilege In California, John P. Doyle

UC Law Journal

The rule in California affording taxpayer litigants a privilege against compelled disclosure of federal and state tax returns is impugned. Protective orders are suggested as a means of accommodating confidentiality interests that might be compromised by abrogation of the privilege.

The Limits Of Judicial Creativity, Roger J. Traynor

UC Law Journal

As the volume of statutes promulgated by legislatures grows, judges have an increasingly difficult role as interpreters of these laws. The author examines this judicial responsibility and suggests the need to strike a balance between active judicial analysis and legislative innovation.