Law Commons^™

United States Immigration Planning For Cross-Border Mergers And Acquisitions, Charles M. Miller

San Diego Law Review

In the Article, Mr. Miller demonstrates how cross-border direct investment in the U.S. through a foreign company's acquisition of a domestic business necessitates careful immigration planning. He speaks directly to the investor and shows that a main priority is the quick and efficient transfer foreign personnel and the employment of foreign graduates. Recognizing the complexity of federal statutes and regulations governing foreign investment, the author concludes that a foreign investor will need to quickly learn that an effective immigration strategy is necessary to successfully do business in the U.S.

A New Look At Actual Minimum Job Requirements And Experience In Similar Occupations And With The Same Employer: Balca's 20 C.F.R. Section 656.21 (B)(6), Lorna Rogers Burgess

San Diego Law Review

In this Article, Ms. Burgess discusses the Board of Alien Labor Certification Appeals (BALCA) which was created by an amendment to 20 C.F.R. § 656.26 and § 656.27. Ms. Burgess asserts that the creation of BALCA has significantly improved the system of adjudication of Applications for Alien Employment Certification. Though BALCA has exerted viable standards, these standards are far from providing analytically sound and practical guidance to practitioners and Certifying Officers. The author suggests that good lawyering in the future may improve BALCA's jurisprudence.

Illinois V. Perkins, Marty Jaquez

San Diego Law Review

In Illinois v. Perkins, the United States Supreme Court held that an undercover police officer need not give Miranda warnings before questioning an incarcerated suspect. In doing so, the Court found that the interests protected by Miranda are not implicated when a suspect does not know the identity of his interrogator. This Note analyzes the Court's reasoning in light of the concerns that motivated the Miranda Court. The analysis reveals that the Perkins reflects the Court's propensity to undermine the Miranda. Unlike other Supreme Court cases creating exceptions to Miranda, Perkins permits deliberate police deception in obtaining an unwarned confession …

Awarding Fair Compensation To Bankruptcy Trustees, Katherine Kruis

San Diego Law Review

For almost a century, bankruptcy trustees have argued with courts regarding appropriate compensation. In 1899, a trustee petitioned the court for a lump sum in lieu of the 3 percent commission allowed under the 1898 Bankruptcy Act. The court held that "the 3 percent commission was amply compensation for all the services performed, and it was the only type of compensation allowed under the [A]ct." In 1986, a trustee submitted a fee application to the court based upon the maximum statutory amount allowed under the 1978 Bankruptcy code. The bankruptcy court reduced the fee. On appeal, the district court affirmed …

Expatriation In The United States: Precept And Practice Today And Yesterday, Alan G. James

San Diego Law Review

In this Article, Mr. James traces the historical roots of expatriation to its current application in present-day law, regulations and procedures. Using as a reference point both the expatriation of the American novelist Henry James and the United States Supreme Court's 1990 decision in Vance v. Terrazas, the author highlights the major facets of expatriation. Specifically, the author focuses on processing and documentation of loss of nationality cases, development of the role of the Department of State in expatriation, the constituent elements of a determination of loss of nationality, and administrative and judicial review of holdings of loss of citizenship …

A Free Trade Agreement Between The United States And Mexico: The Right Choice, Jesus Silva, Richard K. Dunn

San Diego Law Review

In this Article, Messrs. Silva and Dunn demonstrate that the intended Free Trade Agreement (FTA) between the United States and Mexico is a natural and necessary step in the two countries' economic relations. Their approach is to trace the steps which have led to the FTA and to analyze the evolution and progression of Mexican economic, legal, and political polices which have reached a point permitting and necessitating a trade pact. An agreement between the two countries is both logical and compelled though it will have permanent consequences and potential obstacles. Nevertheless, the agreement must be implemented and with an …

V.27-4, 1990 Masthead

San Diego Law Review

No abstract provided.

Towards The Cathedral: Ancient Sanctuary Represented In The American Context, Michael Scott Feeley

San Diego Law Review

In this Article, Mr. Feeley, discusses the historical roots of the power of the Church to provide sanctuary to those in fear of life and limb. Tracing its historical roots, the author identifies three elements of sanctuary - person, place, governmental check. He then demonstrates that the American Sanctuary Movement contains these defining elements of historical sanctuary. An analysis of the Sanctuary Movement concludes that, despite its different features and cultural locus, the Movement embodies the ancient elements of person, place and governmental check transformed, rather than transubstantiated by the American context.

Reclaiming The Beautiful Island: Taiwan's Emerging Environmental Regulation, Michael Scott Feeley

San Diego Law Review

In this Article, Mr. Feeley, provides an introduction to the Taiwanese environmental regulatory scheme emerging from Taiwan's unique circumstances (economic influence and ecological crises) and the potential economic impact that may result. The author reviews the development of the centuries-old colony into an independent and powerful state. He then provides an overview of the specific environmental laws, regulations and policies already in place and previews those being developed. Lastly, he discusses potential economic effects of the new environmental scheme. In conclusion, the author envisions the shrewd commercial acumen and diligence which fueled Taiwan's rise in the world market as a …

Practice Makes Perfect: Reasonable Accommodation Of Law Students With Disabilities In Clinical Placements, Sande L. Buhai

San Diego Law Review

Clinical legal education provides exceptional benefits to law students.' It is one of the best ways that law students can begin to: (1) identify which type of law they wish to practice, (2) make connections in the legal field to foster future employment opportunities, (3) develop mentoring relationships, (4) learn many important skills, and (5) learn professional responsibility and competence. These benefits directly translate into increased opportunities for successful employment upon graduation.

The First Women Members Of The Supreme Court Bar, 1879-1900, Mary L. Clark

San Diego Law Review

In 1879, Belva A. Lockwood of Washington, D.C., became the first woman member of the bar of the U. S. Supreme Court. Lockwood had applied for admission to the bar three years earlier, but had been refused on the ground that no woman had ever been admitted and thus there was no precedent for women's admission. Not easily defeated, Lockwood lobbied Congress to amend the rules governing admission of attorneys to the Supreme Court bar to allow for women as well as men. In February, 1879, Congress adopted "an Act to relieve certain legal disabilities of women," which authorized women …

Legal Rules And Social Reform, Emily Sherwin

San Diego Law Review

Rules are designed to reduce error by prescribing actions that, in the run of cases, will produce better results than the subjects of rules would obtain if they judged for themselves what to do. At the same time, rules sometimes produce errors when applied to particular cases. If the sum of error under rules is less than the sum of error rules prevent, then the rule-making authority has reason to issue "serious" rules-rules to be followed in every case. Because rules are imperfect, however, the subjects of rules do not always have good reason to follow them. This means that …

Race, Space, And Place: The Geography Of Economic Development, Audrey G. Mcfarlane

San Diego Law Review

In 1993, Congress authorized a community and economic development program called The Empowerment Zone and Enterprise Cities Demonstration Program ("Empowerment Zones Program") to create geographic zones within certain selected cities that would be eligible for special federal attention to alleviate pervasive conditions of

poverty and economic distress within the cities. The program is self- described as a strategy "to create jobs and business opportunities in [the]

most economically-distressed areas of inner cities' by providing tax incentives and social service funds within the zone to stimulate business creation and expansion and attain, over the long-term, revitalization of

the distressed community. The …

A 'Strikingly Anomalous,' 'Anachronistic Fiction': Off-Reservation Sovereign Immunity For Indian Tribal Commercial Enterprises

San Diego Law Review

The issue of sovereign immunity is becoming an increasingly important one as tribes that were traditionally impoverished and isolated reach out and do business around the country. On the one hand, tribes have been focusing on a few, specific businesses "includ[ing] ski resorts, gambling, and sales of cigarettes to non-Indians." But more recently, as the 1998 Supreme Court case of Kiowa Tribe v. Manufacturing Technologies, Inc. notes, the "modern, wide-ranging tribal enterprises extend[] well beyond traditional tribal customs and activities." This creates some initial difficulties. Non-tribal corporations may be hesitant

to do business with tribal corporations, which themselves may be …

The Irony Of Constitutional Democracy: Federalism, The Supreme Court, And The Seventeenth Amendment, Ralph A. Rossum

San Diego Law Review

The thesis of this Article can be stated briefly: The founding generation clearly understood that federalism would be protected primarily by the mode of electing the United States Senate. The adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,' changed all that. The Seventeenth Amendment was ultimately approved by the United States Congress and ratified by the states to make the Constitution more democratic. Progressives argued forcefully, persistently, and successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the …

Birbrower, Montalbano, Condon & Frank, P.C. V. Superior Court: A Defensible Outcome, But A Striking Example Of The Need To Reform Unauthorized Practice Of Law Provisions

San Diego Law Review

The comments of then-Governor Pete Wilson perhaps echo a commonly held, nationwide belief: the State Bar of California is arrogant.2 If the State Bar of California has been perceived historically as aloof, then the Supreme Court of California created a public relations nightmare-indeed, threw gasoline on a simmering inferno-with its recent opinion in the case of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court ("Birbrower If').' In Birbrower II, the court held that a New York law firm was unable to collect the majority of its fees,

which exceeded one million dollars, because some of its attorneys- none of …

The Devil Made Me Do It: Replacing Corporate Directors' Veil Of Secrecy With The Mantle Of Stewardship, Constance E. Bagley, Karen L. Page

San Diego Law Review

This Article argues that the nature of the corporate form coupled with an exclusive focus on shareholder value leads to economically and socially inefficient results. The "profit maximization" view of directors' duties ignores the historical reasons why corporations were given special privileges, such as limited liability, by the state. This narrow view should be replaced with a doctrine of stewardship that imposes a more comprehensive view of the corporation's and directors' responsibility to manage the vast resources held in corporate form. This broader view is consistent not only with the values of a free market economy, but also with modem …

The Future Of Bioethics Testimony: Guidelines For Determining Qualifications, Reliability, And Helpfulness, Bethany Spielman, George Agich

San Diego Law Review

This Article addresses key questions about expert bioethics testimony4 from within the framework of the basic rule concerning expert witnesses, Federal Rule of Evidence 702.' This Rule6 requires judges to affirmatively answer three basic questions before admitting expert testimony: (1) does this witness qualify as an expert by knowledge, skill, experience, training, or education; (2) does the testimony consist of scientific, technical or other specialized knowledge; and (3) will the testimony assist the trier of fact. Bioethics testimony presents distinctive problems in each area, on which commentators have not necessarily focused. Part II of this Article addresses the question of …

Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper

San Diego Law Review

In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth, The Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964. The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other legal fictions …

Temporal Units Of Prosecution And Continuous Acts: Judicial And Constitutional Limitations

San Diego Law Review

Part II will examine the

historical development and the Supreme Court's application of the so- called rule of lenity when adjudicating cases involving statutes with

unclear units of prosecution Part II will also examine the manner in which unclear draftsmanship has been treated in other areas of law and

will compare those areas of law with the rationale behind the rule of lenity. Finally, Part II will conclude by arguing that the rule of lenity creates a presumption opposing multiple prosecutions for the continuing violation of a statute, unless there is clear legislative intent to the contrary. Part M11 will …

The Rule In A Contribution Action Between Third-Party Insurers Wherein The Plaintiff Insurer Seeks Reimbursement Of Defense Costs From The Defendant Insurer After A Collusive Fraud On The Plaintiff Insurer Under California Law

San Diego Law Review

This Comment addresses five sub- issues, as follows:

1. Does or should an insurer have a duty to defend when it "knows" that the insured is involved in collusive fraud? 2. Assuming there is "substantial" but inconclusive evidence of collusive fraud, does an insurer who refuses to defend thereby commit a breach of duty? 3. In connection with a contribution action, are there any "gatekeeper" duties owed by the payer to the non-payer which must be satisfied? 4. Given that the non-payer denied coverage on the basis of collusive fraud, what must be proven in a subsequent contribution action? 5. …

Jerry-Building The Road To The Future: An Evaluation Of The White Commission Report On Structural Alternatives For The Federal Courts Of Appeals, Joseph N. Akrotirianakis, Paul Garo Arshagouni, Zareh A. Jalotorssian

San Diego Law Review

For years, critics have argued that the United States Court of Appeals for the Ninth Circuit should be divided because it has grown too large to manage its caseload effectively.' They blame the Ninth Circuit's size for alleged increases in intra-circuit conflicts, inefficiency, delay, and a lack of collegiality among its judges.! In recent years, conservative

congressmen in the Pacific Northwest have criticized the San Francisco- based circuit for its "liberal" rulings on everything from the environment

to the death penalty?

The Tort That Refuses To Go Away: The Subtle Reemergence Of Public Disclosure Of Private Facts

San Diego Law Review

This Comment focuses instead on the subtle reemergence of the private facts tort in factual scenarios Warren and Brandeis most likely could not foresee one hundred years ago. Part II of the Comment briefly describes the development of the private facts tort. Part III examines the inevitable conflict between the private facts tort and the First Amendment, and common law attempts to reconcile that conflict through variations of the "newsworthiness" defense. Part IV focuses on the resurrection of the private facts tort in recent case law, due to judicial limitation of the newsworthiness defense. Finally, after examining the problems associated …

Strict Liability For Abnormally Dangerous Activity: The Negligence Barrier, Gerald W. Boston

San Diego Law Review

My main thesis is that the doctrine of strict liability for abnormally dangerous activity (which I sometimes refer to by the acronym SLADA), memorialized in sections 519 and 520 of the Restatement (Second) of Torts,' has evolved to the point of near extinction because courts have concluded that the negligence system functions effectively to deter the serious risks posed by the activities involved. The Restatement (Second) provides that strict liability is inapplicable when the high degree of risk can be eliminated by the exercise of reasonable care.2 The evidence demonstrates that courts are increasingly making precisely that finding, usually without …

A Jurisprudence In Disarray: On Battery, Wrongful Living, And The Right To Bodily Integrity, Mark Strasser

San Diego Law Review

The right to bodily integrity is firmly entrenched in the right to privacy jurisprudence. An individual who has that right violated by being subjected to an unwanted touching can sue for damages. For example, an individual who receives medical treatment against her will can bring an action for battery, even if that treatment provides her a net benefit.' Yet, the determination of whether our current system provides either sufficient compensation for the victim of a nonconsensual physical invasion or a sufficient disincentive to possible tortfeasors to prevent such invasions is only possible after the potential damages for such invasions are …

Should A Possession Or Use Standard Be Employed To Prove Insider Trading?

San Diego Law Review

This Comment endorses the legislative adoption of an initial rebuttable presumption in favor of the complainant in insider trading cases. This presumption would create a strong inference of "actual use"

upon proof that the defendant was in possession of material and non- public information at the time he consummated a securities transaction.

Moreover, the inference would establish a prima facie case of insider trading sufficient to withstand summary judgment. This Comment argues that such a presumption is appropriate as it is consistent with the plain language of section 10(b) of the Securities Exchange Act of 19345

and SEC Rule lOb-5. …

War Decisions In The Late 1990s By Partial Congressional Declaration, Charles Tiefer

San Diego Law Review

The great surprise in actual war powers decision making of the late 1990s has been the emergence of a practically decisive, yet

constitutionally unexplored paradigm: "partial" congressional declara- tion of war.' Presently, the Senate and the House seem to have the

function of deciding on warlike action through unmatched, "partial" declarations; just how constitutional can this be?

Must Post-Termination Procedural Due Process Include A Full, Trial-Like Evidentiary Hearing? A Critique Of Townsel V. San Diego Metropolitan Transit Development Board

San Diego Law Review

The due process clause of the Fourteenth Amendment has been held to prohibit the deprivation of a constitutionally protected property interest without "appropriate procedural safeguards."' The California Court of Appeal for the Fourth District recently decided what procedural safeguards were appropriate for a post-termination hearing following the discharge of a public employee. In Townsel v. San Diego Metropolitan Transit Development Board, the court held that all public employees removable only for cause are entitled to a full, trial-like post-termination evidentiary hearing where the government employer must prove its case against the discharged employee. This Casenote questions the Townsel court's holding.

California's Attempts To Disarm The Black Panthers, Cynthia Deitle Leonardatos

San Diego Law Review

When the Black Panthers screamed of an armed black populace on the verge of a revolution in 1966, the California Legislature responded with a gun control statute. While many journal articles have been written on the topic of race and guns, none have examined the history and motivations behind the California Legislature's decision to enact a gun control statute in 1967 for the purpose of disarming the members of the Black Panther Party. This Article examines and analyzes this particular California law to enhance the Second Amendment literature on the topic of discriminatory gun control statutes. Accordingly, Part II of …

Slaves To Fashion: A Thirteenth Amendment Litigation Strategy To Abolish Sweatshops In The Garment Industry, Samantha C. Halem

San Diego Law Review

Viewed as a relic of a bygone era, modem legal teaching largely ignores the Thirteenth Amendment. Few constitutional law textbooks give it any more than a passing glance.' After all, slavery was abolished in the United States in 1863. While it is true that some scholars have suggested new applications for the Civil War Amendment legal practitioners have found few practical applications. This Article proposes a real world application of the Thirteenth Amendment to a current real world problem. Legal practitioners have under-utilized the Thirteenth Amendment. They should employ the Thirteenth Amendment as a valuable tool for fighting slavery and …