Showing papers in "Washington Law Review in 1994"

Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information

Abstract: Legal research, in particular the way in which law schools provide legal research training to first-year law students, is the mom and apple pie issue of legal education. Everyone is willing to criticize the lack of it, praise the importance of it, or discuss the reasons it has not been done so well.1 After all, the whole corpus of legal education is constructed around Dean Langdell's theory that the law library, the place where the law student conducts research, is the laboratory of the law,' and the process of legal research has been intertwined with the process of legal reasoning that is still the core of legal pedagogy. This is to say nothing of the popular perception that lawyers know how to find the law. While most people realize that no lawyer can hold all necessary legal doctrine inside of her brain, people assume, and expect, that lawyers know how to find the relevant law. Given the conceptual centrality of legal research and the popular perception of its importance, the truly surprising thing about it is that so little has changed in the teaching of it, or rather that so little in the way of genuine innovation has been introduced into it intentionally.3 Legal research training is changing, and changing dramatically, but not through the planning or action of law schools. These events really place legal research training at a crossroads, and an issue that is devoted to the work of Marjorie Dick Rombauer is the perfect place to look at both how the

On Teaching Professional Judgment

Abstract: To answer the question posed by the conveners of this symposium, of course there is a gap between legal education and the legal profession. There has always been one, and quite possibly it has widened somewhat in recent years, if for no other reason than that the world in which lawyers practice has changed so much while legal education has changed relatively little. The external changes include the internationalization of legal transactions, the centrality of technology to many aspects of practice, increased specialization driven by the proliferation and complexity of statutory and regulatory schemes, and the overloading of traditional systems of civil and criminal justice. Perhaps more significant than any of these is the unhappy fact that today's law school graduates will enter a society that views them with hostility and suspicion and regards their impact on our national culture and economy as often more negative than positive.' Within the bar there is a sense that the practice of law as a profession is declining: that it is devolving into a business;2 that personal trust and

Mission Revival Jurisprudence: State Courts and Hispanic Water Law Since 1850

Abstract: In this Article, the author argues that after the United States' annexation of the Southwest, state judges in California, New Mexico, and Texas knowingly distorted the communal nature of applicable Spanish and Mexican water law. While previous scholars have acknowledged that courts misinterpreted municipal and riparian water rights originating in the Southwest's Hispanic period, most historians have attributed the distortion to ignorance rather than design. Using archival sources, the author demonstrates that American judges created an historical fiction of "Spanish" absolute water control, and intentionally disregarded actual law and custom dictating water apportionment. The resulting doctrines of pueblo water rights and riparian irrigation rights facilitated water monopoly and accumulation by cities and large landowners. This intentional manipulation of Hispanic law bears implications for legal historical debates and contemporary water allocation problems. I. JURISPRUDENTIAL FORMALISM AND THE DOCTRINE OF PUBLIC RIGHTS ......................................... 873 II. SPANISH COLONIAL REVIVALISM AS A CULTURAL FANTASY .......................................................... 876 III. PUEBLO WATER RIGHTS IN CALIFORNIA, NEW MEXICO, AND TEXAS .......................................................... 882 A . California ........................................................................... 884 B. New Mexico ........................................................................ 906 C. Texas .................................................................................. 911 IV. RIPARIAN IRRIGATION RIGHTS IN TEXAS ..................... 914 V. CONCLUSION ........................................................................ 923 However much judges liked to clothe doctrine in history and in the costume of timeless values, doctrine was still at bottom flesh and blood, the flesh and blood of real, contemporary struggles over goods and positions and authority. Lawrence M. Friedman, A History of American Law 342 (2d ed. 1985) *Professor of Law, Whittier Law School. B.A., M.A., Ph.D. (Latin American History), U.C.L.A.; J.D., U.C. Berkeley. This project was supported by grants from the Rocky Mountain Mineral Law Foundation and Whittier Law School. The author is grateful for the comments and suggestions of Gordon Bakken, Iris H.W. Engstrand, Ram6n Gutirrez, Abraham Hoffman, Norris Hundley, Joseph McKnight, John Reid, Andrew Rolle, and the Whittier Law Faculty Discussion Group, and for the research assistance of Cynthia Rogers. Washington Law Review The Mission Inn in Riverside, California, is a luxury hotel constructed in 1902 to evoke "the Old California of missions and ranchos," according to its promotional pamphlet.' Consistent with this image, the builders filled an entire city block with arches, bell towers, flying buttresses, domes, fountains, wrought-iron balconies, and Tiffany stained-glass windows.2 An ornate, turn-of-the-century fan'rasy of Hispanic architecture, the Inn is completely unlike the unornamented adobe structures that existed in the Southwest before the Americans came.3 Similarly, late nineteenthand early twentieth-century state courts developed elaborate theories of water rights ostensibly based on Hispanic law, but which bore no resemblance to actual Spanish and Mexican legal traditions. Despite their awareness of the historical reality of communal water-sharing practices, American judges asserted that municipal and riparian water rights originating in the Hispanic period were absolute and exclusive.' These doctrines of absolute water rights, legitimated water monopoly and accumulation in the hands of a few cities and landowners. In some states, this version of Hispanic law persists: in 1975, the California Supreme Court reaffirmed Los Angeles's paramount "pueblo water right" to its local watershed on the basis of stare decisis, despite extensive trial court findings that the right had no historical basis.' In contrast to the common law water regime of riparian and prior appropriation rights emphasizing individual property interests,6 a 1. Mission Inn Foundation, The Story ofthe Mission Inn 2(1993). 2. Esther Klotz, The Mission Inn: Its History andArifacts 1 (1993). 3. Harold Kirker, California's Architectural Frontier 4, 9 (1960). See infra text accompanying notes 48-54 for discussion of the "mission revival" movement as an idealized myth about Spanish colonial civilization. 4. See discussion infra parts III and IV. 5. City of Los Angeles v. City of San Fernando, 537 P.2d 1250 (Cal. 1975). See discussion infra text accompanying notes 242-56. 6. Riparian doctrine, dominant in the eastern United States, provides that every landowner along a watercourse has an appurtenant right to reasonable use of the water. 6 Robert Beck, Waters and Water Rights 541 (1991). Appropriation doctrine, prevalent in the West, provides that water rights arise from prior diversion and application to beneficial use. Id. at 494. Compared to the riparian rule, prior appropriation is based on use rather than land ownership, and gives the first user an exclusive right to a constant amount of water. Sarah F. Bates et al., Searching Out the Headwaters 147 (1993). For historical analyses of the nineteenth-century replacement or supplementation of riparianism with appropriation in the western states, see Robert G. Dunbar, The Adaptability of Water Law to the Aridity of the West, 24 J.W. 57 (1985) (appropriation more adapted to arid climate), and Donald J. Pisani, Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century, 18 W. Hist. Q. 15 (1987) (appropriation met West's economic development needs). Vol. 69:869, 1994 Hispanic Water Law in the Southwest communal water system prevailed in the Hispanic Southwest.7 Legal historians of the Spanish and Mexican periods have shown that far from being absolute and exclusive, water rights were shared between municipalities and other users, especially in times of shortage.8 This communal water system also restricted the private sector, for riparian owners did not automatically have the right to irrigate their own property, but needed an express or implied grant of water in addition to land.9 These communal water use patterns can be traced back to regional sharing arrangements in medieval Spain'° and ate still practiced in parts of the contemporary Southwest." Based on this historical evidence, many scholars of western water law in the American period have criticized nineteenthand twentieth-century state courts for distorting Hispanic traditions. 2 However, the legal historians who have attempted to explain this distortion have attributed it to a judicial "loss of Hispanic learning" 3 or to parties failing to present documents on Spanish and Mexican water law to the courts. 4 None of these scholars has examined the contemporary background of the key nineteenthand early twentieth7. An area embracing the present states of California, Arizona, New Mexico, Texas, Nevada, and Utah, and portions of Colorado, Oklahoma, Kansas, and Wyoming was governed successively by Spain from the sixteenth century to 1821, and by Mexico from 1821 to 1846 (to 1836 in the case of Texas). David J. Weber, The Mexican Frontier, 1821-1846 xv (1982). 8. Norris Hundley, The Great Thirst: Californians and Water, 1770s-1990s 39 (1992); Michael C. Meyer, Water in the Hispanic Southwest 157 (1984); Daniel Tyler, The Mythical Pueblo Rights Doctrine 13, 44 (1990). See discussion infra text accompanying notes 87-89. 9. Hans W. Baade, The Historical Background of Texas Water Law-A Tribute to Jack Pope, 18 St. Mary's L.J. 1, 64, 94-95 (1986); Betty Dobkins, The Spanish Element in Texas Water Law 143-44 (1959); Meyer, supra note 8, at 119-20. See discussion infra text accompanying notes 328-31. 10. Thomas F. Glick, Irrigation and Society in Medieval Valencia 118-31 (1970) [hereinafter Glick, Valencia]; Thomas F. Glick, The Old World Background of the Irrigation System of San Antonio, Texas (1972) [hereinafter Glick, San Antonio). 11. Stanley Crawford, Mayordomo: Chronicle of an Acequia in Northern New Mexico (1988). Crawford describes the governance of acequias (irrigation ditches) in northern New Mexico, by which local users receive a water share in exchange for contributing to ditch maintenance. Id. 12. Baade, supra note 9, at 24 n.142, 88, 91; David Chatfield & Bruce Bertram, Water Rights of the City of Los Angeles: Power Politics and the Courts, 6 San Fern. Valley L. Rev. 151, 153-76 (1978); Dobkins, supra note 9, at 139-58; G. Emlen Hall, Shell Games: The Continuing Legacy of Rights to Minerals and Water on Spanish and Mexican Land Grants in the Southwest, 36 Rocky Mtn. Min. L. Inst. § 1.03 (1991); Hundley, supra note 8, at 126-35, 330-32; Wells A. Hutchins, Pueblo Water Rights in the West, 38 Tex. L. Rev. 748, 757-58 (1960); A.R. White & Will Wilson, The Flow and Underfiow ofMotl v. Boyd-The Conclusion, 9 Sw. L. J. 377, 431-32 (1955). 13. Baade, supra note 9, at 23, 87; Dobkins, supra note 9, at 133; Joseph W. McKnight, The Spanish Watercourses of Texas, in Essays In Legal History in Honor of Felix Frankfurter 373, 374, 386 (M. Forbosch ed., 1966). 14. Hundley, supra note 8, at 134; White & Wilson, supra note 12, at 433. Washington Law Review century cases to evaluate the context of these decisions, and none has researched court files to determine the extent to which judges knowingly misused Hispanic law. Using previously untapped source material, especially court files, this Article explains the historical reasons for the nineteenthand early twentieth-century judicial misinterpretation of Hispanic water law which still burdens western water policy. Part I considers how formalistic jurisprudence and notions of public rights influenced legal doctrine. Part II examines how American cultural myths about the Southwest's Spanish and Mexican past substituted images of a romantic arcadia for a more mu

Are Oliver Stone and Tom Clancy Journalists? Determining Who Has Standing to Claim the Journalist's Privilege

Abstract: Most circuits recognize a qualified privilege that provides a partial First Amendment shield for journalists to protect the confidentiality of their sources and materials. Few courts, however, discuss the scope of the class protected by this privilege. This Comment examines who has traditionally been part of the protected class and explores the trends and concerns of courts in granting standing. This Comment also recommends a framework that courts can use to determine whether to extend the journalist's privilege to new formats of communication and applies this framework to two examples. Journalists have long claimed a privilege under the First Amendment's freedom of the press provision that protects the confidentiality of their sources and research materials.' They argue that confidential sources and materials are essential to successful investigative reporting and contribute to the free flow of information that lies at the heart of the freedom of the press provision.2 Conversely, testifying in criminal and civil trials has traditionally been an obligation of citizenship and integral to serving the public interest.3 First Amendment values, therefore, may conflict with the public interest in effective law enforcement and guaranteeing a fair trial in which all relevant evidence is presented. The past thirty years have produced vehement conflicts between these competing interests. Seldom does a month go by without a journalist confronting efforts to force disclosure of confidential sources.4 The courts have attempted to solve this problem by developing a qualified privilege that provides journalists with a partial First Amendment shield 1. Paul Marcus, The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815,816 (1984). 2. Glenn A. Browne, Note, Just Between You and Me... For Now: Reexamining a Qualified Privilege for Reporters to Keep Sources Confidential in Grand Jury Proceedings, 1988 U. ill. L. Rev. 739,739 (1988). 3. See Blackmer v. United States, 284 U.S. 421,438 (1932); Blair v. United States, 250 U.S. 273, 280(1919). 4. In December 1993, an Anchorage Daily News reporter faced repeated efforts to force disclosure of her source of internal corporate documents. David Whitney, Alyeska, Hamel, Fail to Settle Case, Anchorage Daily News, Dec. 11, 1993, at Al. In April 1993, a reporter in Florida was jailed for thirty days for refusing to disclose a source. Owen Thomas, Notes on the Media, Christian Sci. Monitor, Apr. 6, 1993, at 13. Washington Law Review from compelled disclosure of confidential sources and materials. Legislatures have attempted to provide protection to journalists by enacting state statutes dubbed \"press shield\" laws. These resolutions, however, have often been incomplete and inadequate. There is little case law that discusses who, leyond the traditional media, is covered by journalist's privilege.' Historically, nearly all claims involved members of the traditional print and broadcast media. A recent Ninth Circuit case, however, granted the privilege to an investigative book author.6 Determining exactly who is entitled to the privilege will be particularly important as technology provides additional tools and techniques to improve information flow7 and trends in the media suggest a blurring of the traditional lines between news and entertainment. This Comment examines the evolution of the class protected by journalist's privilege. Part I provides a doctrinal and historical analysis of journalist's privilege. Part II examines who is currently entitled to protection and the courts' concerns about expanding this protection. Part III advocates that all circuits adopt the von Bulow test and reject adding a public interest requirement to standing analysis. It also recommends how courts should respond to authors of small circulation, private newsletters and creators of fictional works who claim the privilege. I. THE DEVELOPMENT OF THE JOURNALIST'S PRIVILEGE Journalists have long claimed a privilege to protect the confidentiality of sources. In 1722, Benjamin Franklin's half-brother was brought before a committee of the legislature and told to reveal the name of an author of a story in his newspaper. When he refused, he was imprisoned for a month.9 Until the 1960s, relatively few courts considered whether a 5. For the purposes of this Comment, the traditional media includes newspapers, magazines, television, radio, and wire services. 6. Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993). The Ninth Circuit rejected an academic researcher's right to claim the journalist's privilege in In re Grand Jury Proceedings, Scarce, 5 F.3d 397 (9th Cir. 1993), cert. denied, Scarce v. United States, 114 S.Ct. 685 (1994). This is not within the scope of this Comment. 7. Examples include electronic mail, on-line services such as Prodigy or Westlaw; and 24-hour news networks such as CNN or C-Span. For an argument why electronic on-line services deserve freedom of the press protections, see Tung Yin, Comment, Post-Modern Printing Presses: Extending Freedom of the Press to Protect Electronic Information Services, 8:2 High Tech. L. J. 311 (1993). 8. This trend is exemplified by the rise of tabloid journalism such as A Current Affair and Hard Copy and \"reality\" programming such as COPS and Rescue 911. 9. Marcus, supra note 1, at 817. Vol. 69:739, 1994 Journalist's Privilege constitutional privilege protected journalists who refused to reveal their sources. Following a number of confrontations between the press and the government, the United States Supreme Court rejected an absolute privilege in 1972 in Branzburg v. Hayes.'0 Since this decision, most courts have recognized a qualified privilege that provides a partial First Amendment shield from compelled disclosure of journalists' confidential sources and materials.\" Courts typically engage in two separate analyses to determine when a journalist is protected. First, the courts will decide if the journalist has standing to claim the privilege. Second, the courts will balance the interest in freedom of the press against the need for disclosure, and then determine where the paramount interest lies. A. The Need for a Journalist's Privilege There are two competing interests at issue in deciding the existence and extent of a journalist's privilege. The preservation of the free flow of information has long been recognized as a core objective of the First Amendment. The First Amendment also rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the public's welfare. 3 There is, therefore, a paramount public interest in maintaining a \"vigorous, aggressive and independent press.\" 4 Courts recognize that this public interest is threatened by compelled testimony of journalists because of the likely deterrent effect on future undercover investigative reporting. 5 Additionally, courts are concerned that shielding information will prevent parties in litigation from receiving a fair trial. In civil trials, pretrial discovery is treated liberally.'6 If no privilege applies,\"' a person can be compelled to produce any relevant evidence or any information 10. 408 U.S. 665 (1972). 11. The circuits do not define the privilege uniformly. Although the journalist's privilege definition varies among the circuits, the differences do not significantly affect the subject of this Comment. 12. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,390 (1969). 13. Citizen Publishing Co. v. United States, 394 U.S. 131, 139-40 (1969). 14. United States v. Burke, 700 F.2d 70, 77 (2d Cir.) (quoting New York Times Co. v. Sullivan, 376 U.S. 254 (1964)), cert. denied, 464 U.S. 816 (1983). 15. Baker v. F & F Inv., 470 F.2d 778, 782 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973). 16. Hickman v. Taylor, 329 U.S. 495, 507 (1947). 17. Recognized privileges vary from state to state, but at least protect marital communications, communications between client and lawyer, confidential information secured in the course of the physician-patient relationship, and governmental secrets. John W. Strong et al., McCormick on Evidence § 72-113 (4th ed. 1992). Washington Law Review reasonably calculated to lead to the discovery of admissible evidence.\"8 This broad right of discovery is based on the principle that litigants have a right to every person's evidence and that this wide access advances the integrity and fairness of the judicial process by promoting the search for the truth. 9 In criminal trials, courts are even more concerned about the paramount public interest in effective law enforcement and a defendant's right to a fair trial. Despite these competing interests and the long history of journalists claiming a privilege, 0 few cases addressed the privilege's existence until the late 1950s.2 Two factors contributed to this. Fist, reporters seldom demanded a hearing, and many cases went unreported because courts dealt leniently with reporters who violated court orders to disclose informants' identities.' Second, to maintain a good working relationship with the press, the federal government often limited its efforts to obtain journalists' confidential information and sources.' Journalists initially relied on the common law to argue that a privilege existed that protected confidential sources.24 They contended that the public's interest in the unrestricted flow of information justified the recognition of a common law privilege. Courts rejected this argument and ruled that a reporter's confidential communications were not privileged from disclosure,25 because the harm to the fair adjudication of litigation would outweigh the uncertain improvement to the free flow of information.26 18. Fed. R. Civ. P. 26(b)(1). 19. United States -s. Bryan, 339 U.S. 323, 331 (1950). 20. The first reported case was Ex parte Nugent, 18 F. Cas. 471 (D.C. Cir. 1848) (No. 10,375) (jailing a reporter for conte

Causation and Injury in Corporate Control Transactions: Cede & Co. v. Technicolor, Inc.

Abstract: In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court held that shareholders are not required to prove injury from corporate directors' failure to exercise due care in approving a merger transaction. Tort principles, the court stated, have no role in a business judgment rule analysis. Therefore, once shareholders prove a violation of the directors' duty of care, the burden is shifted to the directors to prove the entire fairness of the transaction despite the absence of a breach of the duty of loyalty. This Note argues that the entire fairness review of a disinterested board transaction is unworkable. Rather, courts should use tort principles to analyze a breach of the duty of care, and those principles require plaintiffs to prove causation and resulting injury. Because proving causation to an absolute certainty in the corporate control setting can be forbidding, this Note proposes a \"substantial lost chance\" causation standard as a more viable alternative. In 1985, the Delaware Supreme Court shocked the corporate world. The court found in Smith v. Van Gorkom' that the corporate directors of Trans Union Corporation were not entitled to the protection of the business judgment rule and had breached their duty of care in evaluating and approving a merger offer.2 Before this decision, courts had rarely found individual directors liable for breaching their duty of care absent accompanying disloyal acts.3 In Van Gorkom, however, the court found liability based solely on the directors' failure to inform themselves properly before approving a takeover.4 The court awarded damages consisting of the difference between the fair value of the stock and the offered price.' The decision provoked strong criticism and extensive 1. 488 A.2d 858 (Del. 1985).