Law Commons^™

Jus Cogens: Compelling The Law Of Human Rights, Karen Parker

UC Law SF International Law Review

The international law principle ofjus cogens, or "compelling law," while of potential value in domestic and international human rights litigation, is rarely invoked by name in the United States. This Article proposes that application of jus cogens may enhance judicial enforcement of human rights. The Article defines jus cogens and sets out some of its substantive content. It presents the procedural effects ofjus cogens, with an emphasis on how jus cogens overcomes judicial doctrines that have frustrated plaintiffs in human rights litigation. The Article concludes by showing howjus cogens concepts, under other names, have been a major force in defending …

The Brazilian Debt-Equity Swap Program, Walter Douglas Stuber

UC Law SF International Law Review

With an external debt amounting to more than 110 billion dollars, Brazil is currently one of the most indebted countries. Since the eruption of the external debt crisis in 1982, Brazil has pursued a number of strategies to face this burden, including debt reschedulings and a moratorium on the payment of interests. This Article is focused on one of the strategies resorted to, the debt conversion program, officially enacted in Brazil in 1988. Upon reviewing the historical background of the foreign debt and its conversion, the Article discusses the different aspects of the debt-to-equity swap program, including eligible debt, conversions …

Hague Evidence Convention In The Aftermath Of Societe Nationale Industrielle Aerospatiale, Pascal W. Di Fronzo

UC Law SF International Law Review

The successful negotiation of the Hague Evidence Convention in 1970 represented an historic achievement in furthering international cooperation in transnational discovery. The Evidence Convention established procedures for obtaining evidence located abroad that would be tolerable to the requested state and would produce evidence utilizable in the requesting state. In Socie't Nationale Industrielle AerospatiaIle the United States Supreme Court majority failed to recognize the great accomplishment the Evidence Convention represents toward international judicial cooperation. The Court held that the Evidence Convention is United States law, but that its application in American courts is optional. This Note addresses the inadequacies of the …

The Political Offense Exception And The Extradition Process: The Enhancement Of The Role Of The U.S. Judiciary, Abraham Abramovsky

UC Law SF International Law Review

Using Northern Ireland as a model, this Article argues that some political dissidents have not received fair trials in countries requesting extradition and suggests another method for evaluating extradition requests. This Article first provides background about the conflict in Northern Ireland and the trial procedures for alleged terrorists. Then, the extradition procedure in the United States is examined emphasizing the political offense exception. The Article concludes that the courts are the most appropriate forum for inquiry into the criminal system of the country requesting extradition, especially when the political offense exception is invoked. The courts should affirmatively undertake the duty …

A Cry For Help: A Comparison Of Voluntary, Active Euthanasia Law, Lynn Tracy Nerland

UC Law SF International Law Review

Active euthanasia, commonly referred to as mercy killing, is an international phenomenon. Yet, the legal response to euthanasia cases varies considerably. The United States and other common- law jurisdictions have no statutes dealing with active euthanasia. They rely instead on the discretion of the prosecutor, judge, and jury to determine justice. This approach produces inconsistent outcomes. Some individuals involved in active euthanasia never come to trial, and others are convicted of murder. This Note explores the judicial and statutory responses to euthanasia in a variety of countries, including the United States, West Germany, Japan, and the Netherlands. Using this comparison, …

The Plo Case: Terrorism, Statutory Interpretation, And Conflicting Obligations Under Domestic And Public International Law, Richard Cummings

UC Law SF International Law Review

This Article considers, in the broadest sense, the role of the federal courts in determining Congressional intent to violate U.S. treaty obligations under international law by enacting statutes in contravention of such treaties. The Article also analyzes the propriety and significance of the International Court of Justice advisory opinion concerning the international obligations of a member state under a piece of domestic legislation before that country's interpretation of the legislation. Specifically, it examines the decision in the PLO Mission case which found that Congress did not intend in the Anti-Terrorism Act to shut the PLO Mission to the United Nations …

Traditional Vietnamese Law--The Le Code--And Modern United States Law: A Comparative Analysis, Lan Quoc Nguyen

UC Law SF International Law Review

In the fifteenth century the Vietnamese developed a comprehensive legal treatise, known as the Le Code, which included a number of advanced legal concepts. Many of those concepts, for example spousal immunity, the prohibition against ex post facto laws, and the rights of the accused to release on bail, a speedy public trial, and confrontation of witnesses, are similar to those found in modem United States law. This Note explores the amazing similarities between two legal systems that are foreign in time and culture from each other. By comparing sections of the Le Code with United States law, this Note …

Webster V. Doe: Toward Constitutional Protection Of Gays Against Governmental Discrimination, Timothy P. Prince

UC Law Constitutional Quarterly

No abstract provided.

The First Amendment And Paid Initiative Petition Circulators: A Dissenting View And A Proposal, Daniel Hays Lowenstein, Robert M. Stern

UC Law Constitutional Quarterly

No abstract provided.

Should Practicing Lawyers Be Legislators, George F. Carpinello

UC Law Journal

Legislators who are also practicing attorneys often face a conflict between their duty to further the interests of constituents and their duty to act in the best interests of their clients. These inevitable conflicts undermine not only the integrity of the legal profession, but also the public's trust in the democratic system. Although the organized bar has recognized the significance of this problem, its response has been weak and inconsistent. This Article recommends several solutions, including prohibiting lawyer- legislators or their law firms from appearing before state agencies, legislative lobbying, and representing any client directly or indirectly interested in legislative …

"Innocence"--A Dialogue With Professor Sundby, Louis B. Schwartz

UC Law Journal

No abstract provided.

A Republic...If You Can Keep It, Hans A. Linde

UC Law Constitutional Quarterly

No abstract provided.

Braswell V. United States: The Collective Entity Doctrine And The Compelled Testimony Standard, David N. Lathrop

UC Law Constitutional Quarterly

No abstract provided.

Morrison V. Olson: Renewed Acceptance For A Functional Approach To Separation Of Powers, William L. Weigand Iii

UC Law Constitutional Quarterly

No abstract provided.

Article X, Section 2: From Maximum Water Development To Instream Flow Protection, Harrison C. Dunning

UC Law Constitutional Quarterly

No abstract provided.

Race, Radicalism, And Reform: Historical Perspective On The 1879 California Constitution, Harry N. Scheiber

UC Law Constitutional Quarterly

No abstract provided.

On The Perils Of Line-Drawing: Juveniles And The Death Penalty, Joseph L. Hoffmann

UC Law Journal

In this Article, the author applies the basic principles of Kantian retributive justice to the eighth amendment issue posed by the use of the death penalty against juveniles. The author contends that the debate over the retributive value of the juvenile death penalty has mistakenly focused solely on whether such a punishment is cardinally proportional to the culpability of the juvenile offender. The author argues that retributive justice also imposes an important, theoretically related requirement that punishments satisfy ordinal proportionality. According to the author, a "bright line" prohibition of the juvenile death penalty, based on chronological age, would violate ordinal …

To Keep The Balance True: The Case Of Coy V. Iowa, Ellen Forman

UC Law Journal

Recently, states have enacted legislation aimed at protecting child victims of sexual abuse from the trauma of testifying face to face with the accused. The United States Supreme Court considered the constitutionality of one such statute in Coy v. Iowa. In Coy, the trial court permitted the use of a one-way screening barrier between the accused and the complaining child witnesses. The Court found that the procedure violated Coy's sixth amendment right of confrontation and reversed the conviction.

The Court's opinion is subject to criticism on two grounds. First, the decision was inconsistent with prior confrontation clause cases. Second, the …

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

UC Law Journal

Although the presumption of innocence is universally acknowledged as central to the Anglo-American accusatorial system, considerable controversy surrounds how far the presumption of innocence should be extended through the requirement that the state prove the defendant's guilt beyond a reasonable doubt. Determining the scope of the presumption of innocence and reasonable doubt rule requires balancing the risk of acquitting the guilty against the danger of convicting innocent individuals. The balancing is made even more difficult when posed as a question of constitutional law because it raises concerns of federalism and separation of powers. This Article reviews the various judicial and …

A Genealogy Of Vertical Restraints Doctrine, Rudolph J. Peritz

UC Law Journal

Traditional antitrust jurisprudence has assumed that competition constitutes the only legitimate policy basis for antitrust doctrine. This Article disputes that assumption, arguing that early antitrust history also reflects strong commitments to commonlaw property rights. This Article seeks to contribute to a better understanding of vertical restraints doctrine by analyzing it within the framework of competition policy and common-law property rights in productive conflict. Employing this framework, the Article concludes that current vertical restraints doctrines are largely the product of property rights in restraint of competition policy. This Article also raises new questions about the relationship between the efficiency norm of …

Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules, Thomas R. Andrews

UC Law Journal

Rules prohibiting nonlawyers from holding ownership or managerial interests in law firms remain on the books in practically every jurisdiction in the United States. This Article examines the history of these restrictions and concludes that the rules cannot be justified as necessary to protect the consumer because less restrictive alternatives are available. Indeed, the rules seem to owe their surprising tenacity more to the fact that they serve the profession's economic self-interest than to any valid public purpose. This Article argues that there is a need and a demand for innovative business arrangements between lawyers and nonlawyers. Such arrangements would …

The Broken Promise Of Reclamation Reform, Hamilton Candee

UC Law Journal

The Federal Reclamation Program was created by Congress in 1902 to foster economic development and settlement of the west by encouraging small family farms. This Article argues that due to abuses by large landholders and ineffective enforcement by the Bureau of Reclamation, this goal was not achieved. To eliminate these abuses and to control the amount of federal water subsidy, Congress passed the Reclamation Reform Act (RRA) in 1982. The RRA made significant changes to the reclamation program and authorized the Bureau to adopt regulations to implement these changes. This Article argues that, despite these efforts, the goal of reform …

Employer Defamation: Reasons And Remedies For Declining References And Chilled Communications In The Workplace, Deborah Daniloff

UC Law Journal

Fear of liability has caused many employers to refrain from giving references or reasons for terminating employees. Inadequate protection for employers under constitutional and tort law, unrestricted punitive awards, and the lack of a declaratory relief alternative threaten free expression in the workplace. This Note proposes that such inadequacies may be remedied by applying an enhanced definition of negligence and eliminating the conditional privilege in employer defamation cases. The enhanced negligence standard would reduce employer fear of strict liability, create a uniform standard of communication for employers to follow, and insure that liability clearly was established by the higher degree …

Introduction, Frank T. Read

UC Law Journal

No abstract provided.

A Preliminary Inquiry Into The Art Of Critique, Richard K. Neumann Jr.

UC Law Journal

Through the method of critique, a teacher, by examining a student's work, guides the student into professional habits of analysis and creativity. Effective critiquing is made particularly difficult by the paradox that direct explanation cannot teach lawyerly thinking and by the frustration and anger that this paradox causes for students. Sometimes, however, the failure of critique to accomplish its goals is due to the inartful use of the method. In addition to being a tool for teaching analytical arts, critique is itself an analytical art requiring pedagogical subtlety and skill. Although critique is the basic medium of clinical teaching and …

Magistrates And Felony Voir Dire: A Threat To Fundamental Fairness, Raymond P. Bolanos

UC Law Journal

Since the initial Federal Magistrates Act of 1968, district courts continue to utilize magistrates in less traditional adjunct capacities as a means of alleviating the overwhelming federal docket. With this expanded role of the magistrate, courts are confronted with the issue of vesting judicial power in a judicial officer not protected by the provisions of article III of the United States Constitution. Recent decisions curtailing magistrates' functions have relied on the traditional article III analysis to conclude that the expanded use of magistrates threatens the separation of powers. Criticizing such an approach, this Note argues that a due process analysis …

Law School Academic Support Programs, Paul T. Wangerin

UC Law Journal

Recent research has indicated that students in academic support programs are not achieving long term grade improvement in their law school studies. This Article suggests that this failure results partly from legal educators' ignorance of the lessons learned by academic counselors in similar support programs at the undergraduate level. Legal educators can learn a great deal about helping high risk students from educational counselors and theorists, particularly in the area of promoting independent learning skills. In turn, educational theorists can benefit from certain law school teaching methods to help promote independent learning. Thus, a multidisciplinary approach will yield the most …

Precertification Settlement Of Class Actions: Will California Follow The Federal Lead, J. Spencer Schuster

UC Law Journal

The captioned parties to proposed class action lawsuits often settle before the court certifies the alleged class. The federal courts have not reached a consensus on the applicability of federal rule 23(e) to such "precertification settlements," but a growing number of federal courts order notice of proposed dismissals and compromises only when such notice is necessary to protect the legitimate interests of the putative class. The settled practice of looking to the Federal Rules of Civil Procedure when California authority is lacking supports adoption of this "functional approach" in California.

This Note argues that the settling parties should not be …

Administrative Collateral Estoppel In California: A Critical Evaluation Of People V. Sims, Thomas F. Crosby Jr.

UC Law Journal

Should an administrative adjudication by an agency not afforded judicial powers under the California Constitution be accorded preclusive effect in a related judicial proceeding? This Article suggests there should be no such effect, or that the legislature should create specific rules to govern its application. If neither, the author suggests that the legislature should simply limit its reach to less serious cases. The author critically examines a decision of the California Supreme Court allowing broad use of administrative collateral estoppel, a felony prosecution barred by the outcome of a welfare "fair hearing," and concludes it was wrongly decided and misapplied …

Disclosure And Accuracy In The Guilty Plea Process, Kevin C. Mcmunigal

UC Law Journal

The prosecutor's constitutional and ethical duty to reveal material exculpatory evidence to a criminal defendant in a case that is tried is well established. The duty to reveal such information in a case that is resolved by a guilty plea, however, remains unresolved. This Article argues that the duty to disclose should be extended to the guilty plea context to help ensure the accuracy of guilty pleas. It maintains that disclosure would enhance the accuracy of guilty pleas by reinforcing both the knowledge and sincerity underlying the confession of guilt, which provides the cornerstone of the typical guilty plea. The …