Law Commons^™

The Jury Returns To Continental Europe: Russia And Spain Return To The Classic Jury As A Catalyst In A Move To A More Adversary Form Of Criminal Trial, Stephen C. Thaman

All Faculty Scholarship

This paper briefly compares the provisions of the Russian Jury Law of 1993 and the Spanish Jury Law of 1995 and their application in the first trials, with special attention to the effect of the re-injection of a classic jury. Citations in regard to Russia rely on the author’s exhaustive study of the legislative history of the new Russian Jury Law, its provisions, and its application in the first 114 trials in the years 1993-1994. The Spanish discussion relies on information gathered by the author on the first trials held in Spain since the law went into effect, and delves …

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

The European Intergovernmental Conference: An American Perspective, George A. Bermann

Faculty Scholarship

Peter Herzog's career-long interest in the European Communities makes it especially appropriate to include in this festschrift a contribution on what has become the principal mechanism for reforming the treaties that constitute those Communities. I refer of course to the "intergovernmental conferences," or "IGCs" for short. As this festschrift goes to press, the fifteen Member States are submitting the results of the latest IGC – the 1997 Treaty of Amsterdam – to their respective national ratification processes.

As its name suggests, the intergovernmental conference is a gathering of representatives of the Member States to discuss and eventually agree upon amendments …

Judicial Resolution Of Issues About Religious Conviction, Kent Greenawalt

Faculty Scholarship

What can judges and lawyers learn about religion from those whose field is religious studies, and from others who can illuminate the phenomenon of religion? Using examples provided in Winnifred Fallers Sullivan's paper, I want to place this general question within the fabric of free exercise law.

What I say assumes that some legal issues she raises have reasonably clear answers. Given the cavalier way the Supreme Court turned free exercise law upside down in Employment Division v. Smith, and given its harsh reception of the Religious Freedom Restoration Act (RFRA), which had received overwhelming Congressional support, little in this …

Deutsche Telekom, German Corporate Governance, And The Transition Costs Of Capitalism, Jeffrey N. Gordon

Faculty Scholarship

In November 1996, Deutsche Telekom AG, the government-owned German telephone company, sold common stock representing approximately 25 percent of the company in a global stock offering that raised approximately DM 20 billion ($13 billion), the largest equity offering ever in Europe. In selling off this equity stake, the German government (i.e., the Federal Republic) had a number of motives. First, the sale was an important step in converting a government-run telephone monopoly into a nimble competitor in the emerging European and world telecommunications market. In anticipation of a fully competitive European telecommunications regime in 1998, Deutsche Telekom ("DT") had been …

Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm

Faculty Scholarship

This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set …

Fifth Circuit: Study Of Gender Bias, Gregory A. Nussel

University of Richmond Law Review

In October 1993, in response to a recommendation in the

Report of the National Commission on Judicial Discipline and Removal, Chief Judge Henry A. Politz appointed a Special Committee of the Fifth Circuit Judicial Council to consider and recommend whether a study of gender bias in the Fifth Circuit should be made. The Special Committee, composed of two circuit judges, two district judges, and one magistrate judge, reported its findings to the Judicial Council during a biannual meeting in June 1994.

D.C. Circuit: Study Of Gender, Race, And Ethnic Bias, John Garrett Penn, Matthew J. Devries

University of Richmond Law Review

The District of Columbia Circuit became the first federal circuit to establish a Task Force on race and gender bias. In 1992, the Task Force, which was comprised of judges from the D.C. Circuit, created two committees-the Special Committee on Gender and the Special Committee on Race and Ethnicity-to assist the Task Force in its research. The committees were comprised of academics, social science advisors of national recognition, and leading attorneys.

Foreword, Heather N. Stevenson

University of Richmond Law Review

The University of Richmond Law Review is pleased to present the sixth annual Allen ChairSymposium issue. Through the generous support of the friends and family of George E. Allen, the annual symposium series provides a forum for discussion of legal issues of national and international significance. This issue of the Law Review is the literary complement to the symposium presentations.

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman

Reviews

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …

Review Of Free Speech In Its Forgotten Years, Terrance Sandalow

Reviews

The gulf that separates contemporary understanding of the First Amendment from that which prevailed in earlier years emerges with striking clarity in this absorbing book by David Rabban,a former AAUP staff counsel who is now professor of law at the University of Texas and the AAUP's general counsel.

Damaška: Evidence Law Adrift. A Book Review, Richard O. Lempert

Reviews

Let me state my biases at the start. I am a great fan of Professor Damaska and have been ever since I read his first book, The Faces of Justice and State Authority. Professor Damaska's most recent book, Evidence Law Adrift, adds to my admiration. In Evidence Law Adrift Professor Dama~ka examines Continental and Anglo-American trial procedures and argues that changes in the way Anglo-American courts resolve cases, especially the marginalization of the jury trial, strip common law evidence doctrine of its theoretical base and place it in danger of becoming an intellectual curiosity confined, in Professor Damaska's words, "to …

Lesbian Divorce: A Commentary On The Legal Issues, David L. Chambers

Articles

Lesbian couples who break up will find themselves in an awkward position under the law for two separable but related reasons. The first is that, because they were unmarried, they are subjected by the law to much the same uneven and ambivalent treatment to which unmarried heterosexual couples are subjected. The second, of course, is that they are gay or lesbian and thus regarded with special disfavor even in some states that have become more tolerant of unmarried heterosexual relationships. As a law teacher who is gay and who writes about family law issues relating to gay men and lesbians, …

The Case For Borrowing A Limitations Period For Deemed-Denial Suits Brought Pursuant To The Federal Tort Claims Act, Ugo Colella

San Diego Law Review

No abstract provided.

Reimbursing Insurers’ Defense Costs: Restitution And Mixed Actions, Douglas R. Richmond

San Diego Law Review

The pejorative “Indian giver” describes a person who, having given a gift to another, takes it back or demands its return. This childhood insult arguably has surfaced in the law of liability insurance. A liability insurer that provides its insured with a defense to a lawsuit, but that later seeks to recover from the insured the costs associated with the defense of uncovered claims, might be described by the insured or by an insensitive court as an Indian giver. Having promised to defend its insured even against suits that are “groundless, false or fraudulent," an insurer that later seeks the …

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. …

Threshold Order: Bilateral Law Enforcement And Regional Public Safety On The U.S./Mexico Border, Alan D. Bersin

San Diego Law Review

The Mexican/United States border region presents a study in contrast and ambivalence in both countries as well as between them. The border marks the collision of international boundaries--the beginning and end of nations as well as a merger of them. It composes a binational corridor and channel where currents of free trade, family ties, migration, cultural exchange, illegal firearms, and drug trafficking boil most actively in tandem. Cross-border perspectives and organizations that promote and share a sense of regional identity are, therefore, increasingly essential to a satisfactory working relationship between the United States and Mexico.

Border Cooperation: The Tijuana/ San Diego Region—A Three Models Case Study, Luis Herrera-Lasso

San Diego Law Review

In the 20th century we have witnessed many changes in the world system. There has been an unpredictable increase in the world population coupled with the emergence of the most unthinkable means of massive destruction. The daily interaction among people and economies have reached almost a point of no return and the pace of technological progress seems almost out of control. The main challenge for international cooperation in this new age is to face threats that have no respect for political boundaries, ethnicity, religions, paradigms or philosophical approaches.

Harmonizing The Mexican Tax System With The Goals Of The North American Free Trade Agreement (Nafta), Mauricio Monroy

San Diego Law Review

Prior to the North American Free Trade Agreement (NAFTA), the international tax provisions of the Mexican tax system were in harmony with the then protectionist environment of Mexican trade. The system was characterized by high withholding taxes on the repatriation of profits (i.e., payments from Mexico to parties abroad), frequently at 21 to 35 percent, and high duties on the importation of goods. It was not abnormal to find duties of 100% ad valorem.

Financing Cross-Border Businesses And Access To U.S. Capital Markets, Thomas M. Shoesmith

San Diego Law Review

Since the devaluation in Mexico several years ago, businesses have increasingly needed money both to finance ongoing operations and to finance expansion to acquire more businesses. Currently, cross-border businesses are booming, especially in the maquiladora industries. These businesses often confront difficulty in acquiring financing for Mexican operations because equity in these businesses is generally low and interest rates on domestically borrowed funds are exceptionally high. As a result, U.S. businesses and lenders are often confronted with opportunities requiring cross-border financing and must be aware of the security devices that are currently available.

Dual Nationality For Mexicans, Jorge A. Vargas

San Diego Law Review

In 1995, the government of Mexico began seriously to consider amending its Constitution to allow for dual nationality, whereby a Mexican could be recognized as holding two nationalities at the same time. Legally, the concept prohibits Mexican nationals from voluntarily abandoning their nationality, even if they opt to become naturalized citizens of another country. Two questions arise as one considers dual nationality in Mexico. First, what has really influenced the philosophical change in Mexico regarding dual nationality? Second, why has Mexico started considering dual nationality now?

Exiling The New Felons: The Consequences Of The Retroactive Application Of Aggravated Felony Convictions To Lawful Permanent Residents

San Diego Law Review

Aliens who commit serious crimes must undoubtedly be deported. American citizens need neither endure the atrocities committed by alien terrorists nor continue to subsidize the unstoppable river of illegal aliens flowing across the borders. Today, over four million illegal aliens live in the United States; at least a quarter of a million more undocumented aliens enter this country each year,' contributing to the serious immigration problems suffered by the United States. Though the concerns raised by immigration policies have periodically surfaced during the last few decades, both legal immigrants and illegal aliens were largely ignored or tolerated during much of …

The Helms-Burton Act: Is The U.S. Shooting Itself In The Foot?

San Diego Law Review

The United States' tool of choice to further its foreign policy goals appears to be economic sanctions. Since 1993, the United States has increasingly applied economic sanctions to further its foreign trade policy. Specifically, more than one-half of the sanctions imposed in the past eighty years have been imposed in only the past four years. The frequent use of economic sanctions has angered and discouraged our allies while significantly weakening the United States' national interests. With so many countries under sanctions, the efficacy of using economic sanctions to promote the United States' foreign policy has been called into question. Suffering …

Patient Advocates Or Patient Adversaries? Using Fiduciary Law To Compel Disclosure Of Managed Care Financial Incentives, Kim Johnston

San Diego Law Review

This Article advocates disclosure as a compromise between wholeheartedly embracing financial incentives and flatly prohibiting them, and suggests using fiduciary law to compel such disclosure. This Article also argues that courts should recognize a cause of action for breach of fiduciary duty when a physician fails to disclose managed care financial incentives to her patients. Part I gives a brief overview of fiduciary law and fiduciary duties. Part II examines the fiduciary nature of the physician-patient relationship and looks at court cases that have characterized the physician-patient relationship as a fiduciary relationship. Part Ill discusses the only two published opinions …

Pretrial Detention In The Ninth Circuit, Thomas Bak

San Diego Law Review

In 1992, the Judicial Conference of the United States ("JCUS") adopted a resolution encouraging the examination of bias based on race, ethnicity, gender, age and disability in the federal judiciary. The Ninth Circuit responded to the JCUS resolution with a study of gender bias, completed in 1993.2 Subsequently, the Ninth Circuit Judicial Conference authorized a second study, establishing the Task Force on Racial, Religious, and Ethnic Fairness in 1993.' This study of pretrial detention in the Ninth Circuit was undertaken as part of the research commissioned by the Task Force.

Amalgam In The Americas: A Law School Curriculum For Free Markets And Open Borders, Mark A. Drumbl

San Diego Law Review

This Article addresses this lacuna by investigating ways in which the American and Canadian common law curriculum could become more responsive to the changing realities of legal practice under NAFTA.

Potentially the following modifications could be introduced on a gradual basis: 1. Introduction of a course to familiarize common law lawyers with the method, principles and practice of civil law, with a directed focus on Mexico; 2. Initiation of a broader NAFTA curriculum, potentially leading to a certificate or designation; and 3. Development of a new law degree, universally recognized in all three NAFTA jurisdictions as a prerequisite to bar …

Reevaluating The Food And Drug Administration's Stand On Labeling Genetically Engineered Foods

San Diego Law Review

This Comment argues that the FDA must reconsider its position on the labeling of genetically engineered foods. There is no doubt that genetic engineering of food promises a number of significant benefits to both the consumer and the farmer, and has become a permanent part of the food supply. But recent research points out that these benefits do not come without significant risks, both to the consumer and to the environment. A federal requirement that genetically engineered foods be labeled as such is a necessary step to promote confidence in the American consumer in the face of unease over these …

The Role Of New Federalism And Public Health Law, James G. Hodge Jr.

Journal of Law and Health

To understand the impact of new federalism on the field of public health law, I explore the development of the interrelated concepts of federalism, state police powers, and public health over time. This article concentrates on the theoretical and legal meanings of these concepts in American jurisprudence. Part II further defines the concept of federalism and its relation to the field of public health law. Part III thoroughly examines the traditional nature of the states' police powers as sources of state authority for public health laws and the corresponding localization of public health goals. The rise of the federal role …