Showing papers in "California Law Review in 1980"

Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis

Abstract: Although Miranda v. Arizona' established that a criminal suspect must be warned specifically of his rights to silence and to counsel before interrogation, whether a juvenile suspect has the legal and psychological capacities to understand these rights is subject to question.2 Doubts concerning minors' comprehension of their Miranda rights are increased by the fact that despite receiving the warnings, most juveniles in pretrial proceedings waive rather than invoke their rights.3 The validity of Miranda rights waivers by juveniles, therefore, is a perplexing,4 significant5 issue. Recognizing that waivers by juveniles merit special consideration and scrutiny not accorded those by adults, courts have generally followed one of two approaches. Either they have required an after-thefact review of all the circumstances attending the waiver, or they have required initial safeguards followed by a review of whether the safeguards were effected. The first approach, adopted by the majority of jurisdictions, mandates a consideration of the "totality of the circumstances" in determining whether a juvenile's waiver of his Miranda rights was knowingly, intelligently, and voluntarily made.6 Thus, in assessing the validity of a waiver, courts are free to consider, inter alia,

Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness

Abstract: Recently, hypnotism of witnesses and victims for purposes of memory enhancement and investigation has become widespread in law enforcement.' One source2 reports that recent recipients of special training in the induction of hypnosis include: (1) police personnel in Los Angeles, Portland, Seattle, Denver, Houston, San Antonio, Washington, D.C., and New York; (2) FBI officers; (3) the Air Force Special Investigations Unit; and (4) the Alcohol, Tobacco and Firearms Bureau of the Treasury Department. Even in small communities police officers and sheriffs have received such training, while in others cooperative psychiatrists and psychologists have been retained for hypnotic investigations. Unfortunately, sensitivity to the limitations and hazards of hypnotism and especially to the myriad ways of intentionally and unintentionally suggesting responses to the subject requires much more experience and training.3 In my opinion, even psychiatric and psycho-

Efficiency, Exchange, and Auction: Philosophic Aspects of the Economic Approach to Law

Abstract: Conversational literacy in neoclassical welfare economics is an apparent prerequisite to gainful employment in American law schools. Loose talk of efficiency, cost-minimization, and the liability rule/property rule distinction punctuates faculty lounge discussions. There is simply no denying that the new law and economics has arrived. So it is a fond (if only temporary) farewell to Rawls and Nozick, and a warm welcome to Coase, Pigou, Calabresi, and Posner. The new law and economics is not without critics, however. There is a growing literature which represents the view that law and economics ought to be relegated to a suitable place in the history of intellectual fads--the sooner, the better. Much of what has been written against law and economics, however, is based on unsympathetic, insensitive, and largely superficial understandings of the central works in the field. Unfortunately, much of what is written in the name of law and economics is equally insensitive to the limits within which economic analysis might prove fruitful. As unsound criticisms and unwarranted extensions of the economic approach to law mount, the time appears ripe for an examination of its analytic framework. Three distinct but related activities fall within the domain of law and economics: two of these are analytic in nature, one is normative. Analytic law and economics may be either descriptive or positive. Descriptive law and economics is concerned with the principle of economic efficiency as an explanatory tool by which existing legal rules and decisions may be rationalized or comprehended. Richard Posner's

First Amendment Doctrine and the Burger Court

Abstract: In the decade since the Burger Court took over from the Warren Court there has been little change in the position that the system of freedom of expression occupies in our national life. Freedom of expression continues to be accepted as the core of our structure of individual rights. It remains the foundation of our efforts to obtain the proper balance between individual liberty and collective responsibility. And it still provides the framework within which our society tries to achieve necessary, nonviolent, social change. Throughout this period, political, economic, and social conditions have supported levels of consensus sufficient to maintain the system. Indeed, in some ways political strains on the system have eased as irrational fears of a Communist menace have abated. The material welfare of the country has, at least up to now, continued to expand. And the social climate has not been unduly intolerant or basically hostile to the system. In general, in the last decade the system has not been tested by the strains of crisis conditions. Nevertheless there have been some significant changes in the system of freedom of expression. These developments have come about in part because of the natural tendency of any vigorous set of legal doctrines to expand to the limits of their logic. In part the developments are due to technological changes in our society, such as those that have resulted in an ever-increasing concentration of the mass media, in the startling growth of data collection and other pressures on our privacy, and in the alarming problems associated with the financing of elections. In part the changes are attributable to the inevitable trend of our society toward collectivism, marked by the dominant role of large organizations, the expansion of governmental functions, and the establishment of vast public and private bureaucracies. Other changing patterns in our complex society have similarly brought forth new issues.

The Legitimation of Purposive Decisions

Abstract: To make sense of a rule, we must often reflect on its purpose, or think of it as a link in some sort of means-ends chain. We ordinarily think this way when asked to explain a rule to persons unfamiliar with it. Frequently we turn to the purpose of a rule for guidance in delineating the contexts to which the rule applies, in determining what conduct will satisfy its requirements, or in resolving apparent conflicts between it and other relevant standards. Sometimes we invoke the purpose of a rule as a standard by which the rule itself may be evaluated: How adequate is it to the end it is intended to serve? How can it be made more effective? Purpose plays a similar role in the explanation, interpretation, and evaluation of complex sets of rules, such as the charter of an institution, the constitution of an office, a procedure of decision, or a framework of regulatory standards. Thus, we are invited to reflect on the intention of the legislature, the mandates of administrative agencies, the responsibilities attached to various offices, not to mention even larger topics such as the aims of punishment or the ends of law in general. Despite its frequent use, the idea of purpose is as controversial as it seems indispensable. One could summarize the history of jurisprudence as a continuing (or constantly recurring) controversy on the proper place of purposes as grounds for various sorts of legal judgments.' On one side are all the descendents of Plato's Stranger, 2 who criticize law for not giving enough authority to the purposes of rules.

Social Responsibility in Investment Policy and the Prudent Man Rule

Abstract: The "prudent man" rule acts as a constraint on the discretionary investment decisionmaking of trustees and investment managers. The rule has conventionally been interpreted as requiring a fiduciary to promote two traditional investment objectives: attainment of an adequate return and preservation of the trust corpus.' As a general proposition, these have been the only objectives that trustees have sought in practice. Recently, however, this conception of the fiduciary's duties has come under attack. Numerous commentators have urged that trustees should be able to pursue other, nontraditional objectives in their investment practices.2 These commentators believe that the resources of various institutional funds should be employed to further worthy social goals.3

Central Staff in Appellate Courts: The Experience of the Ninth Circuit

Abstract: More than a decade before he was appointed to the Supreme Court, Felix Frankfurter summarized the conditions that he believed \"indispensable to a seasoned, collective judgment\" by that tribunal. Four of these are of particular importance: 1. Encouragement of oral argument; discouragement of oratory. The Socratic method is applied; questioning, in which the whole Court freely engage, clarifies the minds of the Justices as to the issues and guides the course of argument through real difficulties. 2. Consideration of every matter, be it an important case or merely a minor motion, by every Justice before conference, and action at fixed, frequent, and long conferences of the Court. This assures responsible deliberation and decision by the whole Court. 3. Assignment by the Chief Justice of cases for opinion writing to the different Justices after discussion and vote at conference. Flexible use is thus made of the talents and energies of the Justices, and the writer of the opinion enters upon the task not only with the knowledge of the conclusions of his associates, but with the benefit of their suggestions made at the conference. 4. Distribution of draft opinions in print, for consideration of them by

Compromise as Precise Justice

Abstract: My responsibility is to assist the principal paper' in defining compromise; I will confmine myself to one major area-civil litigation. This is not my maiden voyage in these waters, and I will avoid needless repetition. Briefly summarized, the earlier work proposed fifty-fifty apportionments by courts in certain cases of indeterminacy of fact or value. The even split was said to follow from the common assumption of equality before the law. Given a balance of conflicting proof or of conflicting policies, an all-or-nothing judgment would seem to violate the equality principle. That earlier work left the underlying conception of equality unexamined. Most of this paper will be devoted to filling that gap. At least a start can be made toward a new meaning for equality, a contribution which seems sorely needed. The final sections will briefly outline how viewing equality as here defined might help to clarify the notion of compromise as embodied in a system of apportioned civil justice.

Islam and Appeal

Abstract: Appeal is a legal phenomenon that Westerners tend to accept without question. The orthodox view is that appeal serves to correct trial errors and thus protect individual rights. Uniformity of law is also commonly advanced as a purpose of appeal. Yet appeal is encountered even in autocratic and totalitarian regimes that have no particular regard for due process or the rights of individuals. Moreover, in such regimes appeal is typically employed to allow the highest political authorities to dispense \"personal\" justice, or, in other words, to give special and nonuniform treatment to those favored by those in authority. It is the hypothesis of this Article that the basic explanation for the almost universal adoption of appeal by various legal systems lies not in a commitment to individual rights and legal uniformity as general values, but rather in the benefits that appeal mechanisms provide to centralizing regimes engaged in the solicitation of political loyalty and the facilitation of hierarchical control. It is contended that political hierarchy is the wellspring of appellate processes. This hypothesis will be applied to the legal system of Islam, which stands alone among major legal cultures in its failure to employ appellate mechanisms.

The Use of Comparative Impairment to Resolve True Conflicts: An Evaluation of the California Experience

Abstract: Dating from the period when Chief Justice Roger Traynor gave distinction to its conflict of laws decisions,' the California Supreme Court has been the only state high court to adopt and elaborate in a consistent fashion the governmental interest approach to choice of law advocated by Traynor's friend and colleague, Professor Brainerd Currie.2 After Traynor's retirement from the court in 1970, Justices Raymond Sullivan and Matthew Tobriner successively undertook the responsibility of articulating California's choice of law doctrine. A major innovation was introduced into this coherent body of case law in 1976 by the court's acceptance, under Justice Sullivan's leadership, 3 of Professor William Baxter's tool for resolving true conflicts, comparative impairment analysis.4 Since that time, the comparative impairment formula has been used in three other cases: another from the California Supreme Court authored by Justice Tobriner;5 and two from the California Courts of Appeal,6 only one of which is officially published.7

Jurisprudence and Social Policy: Aspirations and Perspectives

Abstract: In these pages I shall try to sketch the aspirations and perspectives of the Boalt Hall program in Jurisprudence and Social Policy (JSP) What I have to say is in no sense official It is a personal interpretation of what we are about Although I have tried to identify an emerging consensus, I know others would put things very differently The faculty is diverse, strong-minded, and incomplete There are generations of students yet to come A more mature statement must await their experience and their criticism

On Moral Justifications for the Tort/Crime Distinction

Abstract: Most systems of justice distinguish criminal from tortious conduct They respond to wrongs that are classified as criminal by deliberately inflicting pain' on the wrongdoer through the institution of legal punishment They respond to wrongs that are classified as tortious, on the other hand, with an attempt to restore injured parties to their positions before the wrong, by requiring that the wrongdoer compensate the victim The reasons for this difference in treatment are not obvious: it is conceivable that a system of justice might refrain altogether from inflicting pain deliberately by simply requiring that wrongs of any sort be compensated Yet there is a moral dimension to this difference in treatment Unless it can be justified, it is a violation of the fundamental moral injunction against the needless infliction of pain Systems that distinguish crimes from torts thus must identify those aspects of "criminal" conduct that justify punishing the offender rather than simply requiring him to pay money damages2

An Informed Public, an Informing Press: The Search for a Constitutional Principle

Abstract: Rhetoric suggesting that there is a \"right of the people. . to govern in an informed manner,\"' and that the press has a \"constitutionally designated function in informing the public\"2 frequently embellishes first amendment opinions. On the surface such rhetorical statements do not strike a discordant note. They seem hardly novel propositions, and thus do not cry out for critical analysis. We do, after all, live in a democracy, and it is part of our tradition to think of ourselves as taking seriously our obligations as citizens. It is a truism that we cannot responsibly exercise our franchise unless we have sufficient knowledge about governmental affairs, operations, and policies to make informed choices among candidates. We therefore feel in some sense entitled to a certain amount of information about what government is doing; thus we are often outraged when we learn of government attempts to practice secrecy upon us. And it is surely a fact that the press has played a crucial, indeed indispensible, role throughout our history in informing us about our government's deeds and misdeeds. In recent years, however, two developments have occurred which put to the test the constitutional substance of familiar rhetorical affirmations of our \"rights\" to govern in an informed manner and of the press' \"constitutionally designated\" function of informing us. The first of these developments is the appearance in the legal literature of arguments by prominent and respected commentators about whether the \"press clause\" of the first amendment ought to be construed independently of the \"speech clause\" so that new constitutional doctrine can be developed (or existing doctrine reinterpreted) to give explicit

Antitrust, Microeconomics, and Politics: Reflections on Some Recent Relationships

Abstract: Professor Sullivan delivered this address on the occasion of his inauguration to the newly created Earl Warren Chair in Public Law at Boalt Hall School of Law. The establishment of this Chair was the culmination of efforts by friends of the Chie/ Justice to create a perpetual memorial to one of Boalt's most distinguished alumni. I am honored and deeply pleased to be appointed to this Chair. One cannot hope to live up to the name Earl Warren. Anyone who holds this Chair over the years will be fully aware of that. The Chief Justice was a towering figure in the history of the nation and the state. He remains a lively figure in the imagination. Let me simply express my thanks to those who made the chair possible and assure them that as its first occupant, I shall try to live the scholarly life in a manner consistent both with the warmth and with the dignity of the man whom the Chair honors.

Legal Change and Class Interests: A Review Essay on Morton Horwitz's the Transformation of American Law

Abstract: Legal history has traditionally been synonymous with the history of the Supreme Court and with the analysis of the great opinions of that tribunal. However, as Morton Horwitz points out in the introduction to his new book on the development of the American common law, The Transformation of American Law, 1780-1860: [C]onstitutional cases are . . . unrepresentative either as intellectual history or as examples of social control .... [J]udicial promulgation and enforcement of common law rules constituted an infinitely more typical pattern of the use of law throughout most of the nineteenth century. By thus focusing on private law we can study the more regular instances in which law, economy, and society interacted.' One of Professor Horwitz's primary objectives in this important and long-awaited work is, therefore, to make the technically difficult and sometimes obscure subject of private law accessible to professional historians2 and others interested in the American past. In this, Horwitz succeeds remarkably well. Trained in the law as well as in political science, he ranges with ease and familiarity over topics as diverse as the law of water rights, mercantile insurance, and negotiable instruments. He succeeds in making these relatively dense areas of the law understandable to the educated layman, at least to the layman who is not averse to reading a text patiently and perhaps more than once. This book is a prodigious work of scholarship3 that will likely have the

A Rule of Reason Decision Model After Sylvania

Abstract: Writing for the Supreme Court of twenty years ago in Northern Pacfc Railway v. United States,I Justice Black praised \"per se\" rules as sources of economy and predictability in the administration of section 1 of the Sherman Act.' He characterized economic inquiry in antitrust cases as \"often wholly fruitless,\" while stating that rules of per se illegality not only avoid most of this \"incredibly complicated and prolonged\" analysis, but also provide more certainty to those concerned.3 Later, Justice Marshall expressed the Court's reluctance to \"ramble through the wilds of economic theory\" in United States v. Topco Associates, Inc. ,4 noting that \"courts are of limited utility in examining difficult economic problems.\"5 In laying down a per se rule, the majority stated that the judiciary's \"inability to weigh. . . destruction of compe-

Holt Civic Club v. City of Tuscaloosa: Extraterritorials Denied the Right to Vote

Abstract: Statutes in thirty-five states authorize municipalities to exercise governmental powers in unincorporated areas beyond the municipalities' territorial boundaries.' Typically, those affected by the exercise of such power are not permitted to vote in municipal elections. In Holt Civic Club v. City of Tuscaloosa, 2 the United States Supreme Court rejected an equal protection challenge to an Alabama statutory scheme that sanctioned the exercise of extraterritorial power without representation. The Court argued that extraterritorials had no right to vote in city elections because they were not residents of the city. Accordingly, the Court applied a rational basis standard to the statutory scheme and found that the scheme furthered a legitimate state interest. 3 This Note suggests that the Supreme Court erred in Holt by failing to apply a strict scrutiny standard to Alabama's statutory provisions. The first part of the Note reviews the facts and the Court's analysis. Part II describes the background of voting rights cases. In Part III, the Note contends that the test established in Holt to identify when the right to vote has been infringed is both unprecedented and unwarranted, and that the Court should have applied a strict scrutiny standard to Alabama's statutes. The Note also argues that under the strict scrutiny standard, the Court should have invalidated the statutory scheme and enlisted the assistance of the state legislature to develop an acceptable alternative.

Conflict-of-Interests Statutes and the Need for a Demand on Directors in Derivative Actions

Abstract: Where there is no complainant there is no judge.' Nowhere is the substantive law so dependent upon the availability of a person entitled to complain of its breach as in the case of litigation on behalf of a corporation. It is a statutory truism that the affairs of a corporation are managed by its board of directors,2 and this includes litigation.3 If, however, the directors will not initiate corporate litigation, and if this refusal is dispositive, then whatever harm allegedly was done to the corporation goes unredressed. To remedy this situation a procedure known as the derivative suit is utilized. Its role in triggering corporate litigation against third parties is important, but even more important is its role in triggering suits against those corporate insiders, particularly directors, who by their imprudent or disloyal behavior may have damaged the corporation.4 Current developments concerning the prerequisites to allowing a volunteer shareholder to sue on behalf of the corporation are the focus of this Article; in particular, I will examine the so-called demand on directors' as a condition precedent to such derivative actions.6 It is the thesis of this Article that many recent cases holding that a prior demand on directors was required, or, if made and rejected, dis-

First Amendment Standards for Subsequent Punishment of Dissemination of Confidential Government Information

Abstract: In interpreting the first amendment, the judiciary often faces a conflict when the issue involves \"government information,\" ie., information within the government's control or custody, including closed hearings and meetings.' On one side of the conflict is the public's interest in obtaining government information that is relevant to participatory democracy. The countervailing consideration is the sovereign's interest in keeping certain government information confidential;2 legitimate government functions can be seriously harmed if such information is disseminated. To resolve fairly the conflict between these two interests the judiciary must create a system of review that will maintain some confidentiality while allowing enough informed discussion to prevent the misuse of power and permit effective self-government. Some form of restraint or penalty must therefore be available to hinder dissemination of sensitive government information. Prior restraints on publication are of only limited use in this regard. Largely because they too thoroughly deter speech that later may be found desirable,3 prior restraints must meet stringent constitutional standards to be upheld.4 Even when allowable, prior restraints are often ineffective in curbing dissemination since the government frequently does not learn of a planned article in time to stop its publication with an injunction.5 Thus, subsequent punishment laws-statutes

Robins v. Pruneyard Shopping Center: Free Speech Access to Shopping Centers under the California Constitution

Abstract: In Robins v. Pruneyard Shopping Center,' the California Supreme Court held that the provisions of the state constitution guaranteeing freedom of speech and the right to petitionz protect the public's right to use privately owned shopping centers as forums for speech-related activities, subject to reasonable regulation. By contrast, the United States Supreme Court has held that the parallel free speech clause in the first amendment to the United States Constitution does not bar a shopping center owner from denying others free speech access to his property.3 In reaching a contrary result under the California Constitution's speech and petition clauses, the California Supreme Court reasserted its right to give a broader interpretation to provisions of California's Declaration of Rights4 than is given to parallel provisions of the federal Bill of Rights.5 The court rejected its prior determination6 that under Lloyd Corp. v. Tanner,7 the applicable federal precedent, shopping center owners possess a federally protected exclusionary property right immune from regulation. Lloyd, the court argued, did not determine the scope of federal property rights; it merely held that the first amendment does not prevent shopping center owners from imposing restraints on speech