SelectedWorks @ Chapman University Dale E. Fowler School of Law
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What Students Don\u27t Know Will Hurt Them: A Frank View from the Field on How to Better Prepare Our Clinic and Externship Students
No full textThis Article investigates the areas in which law students are under-prepared for the externship and clinical experience as identified by those in the best position to know: their field supervisors. Through surveys and interviews, the authors learned what qualities supervisors hope to see in students, what abilities they want from students, and the level of competence they will accept. The article begins with an examination of the authors\u27 own perceptions of student inexperience and the factual basis, if any, for the concern that law students need to be better prepared for their first field placements and clinics. Next, the authors describe the survey of nearly three dozen judges, law clerks, government agency attorneys and public interest attorneys with experience supervising students from schools across the county. Also discussed are the more detailed accounts offered by several supervisors who presented their opinions at the authors\u27 Externship 3: Learning from Practice conference presentation in March, 2006. The authors analyze the results by type of skill (writing, research, office etiquette, etc.), as well as by type of placement (judicial, government and public interest). The article concludes with a discussion of the tools that the authors have developed to better prepare their students and their plans for future program improvements
Meaty, Beaty, Big and Monopolistic: The Story of General Motors
No full textDetroit, General Motors, and the American automobile industry have been in a progressive decline for decades. Millions of jobs, union and non-union, have been lost, scores of plants shuttered, and the Michigan economy left reeling. I wrote an unpublished manuscript 35 years ago, positing that as a monopoly, or quasi-monopoly, GM should be broken up for the good of America. Its stultifying power limited innovation and competitiveness among Detroit\u27s Big Three as prices skyrocketed, quality deteriorated, safety languished, and fuel economy suffered. The general rule became: Don\u27t buy a Detroit car built on Monday, Friday, the first day of hunting season, or the first year of production. GM lost over half its market share, and such once great marques as Oldsmobile and Plymouth (Chrysler) were scrapped. High entry barriers forestalled new domestic competitors. Those of us who are children of the 60\u27s remember the teachings of John Kenneth Galbraith, Charles Reich, et al., that the great American corporations, and shared monopolies, were immune to competition, could administer prices, and ignore consumers. This manuscript partially reflects these beliefs. The Japanese, Germans, and now Koreans did not follow Galbraith\u27s dictates and filled the competitive breach. This 35 year old manuscript examines the history of GM from an antitrust perspective. The manuscript did not foresee the shock of two oil embargoes in the 1970\u27s and the change to a global economy. Nor did it fully anticipate the effects that poorly designed and manufactured, but overpriced vehicles, would have on the marketability of GM cars. These models include various Chevy\u27s, especially the Corvair, Chevette, Citation, Nova, and Vega and Cadillacs, including the Allante, Cimarron, and Seville. Had GM been dissolved 3-4 decades ago, American manufacturers might have regained their competitive edge and successfully responded to the foreign competitors
Good Cause Is Bad Medicine For The New E-Discovery Rules
No full textThis Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is “not reasonably accessible” shall be discoverable only if the requesting party can establish good cause. The intent of these amendments was to limit the cost and burden of discovery and to ensure that similarly situated litigants are treated similarly with respect to discovery of electronically stored information. I conclude that the e-discovery amendments to Rule 26(b)(2) will be ineffective because they increase judicial discretion—likely leading to disparate treatment of similarly situated litigants—while providing no new protection against the cost and burden of discovery. First, the courts’ persistent reliance on the “liberal rules of discovery” mantra will not be overcome in the absence of express direction. Second, the good cause standard is so vague that it is both toothless and meaningless. Third, the e-discovery amendments to Rule 26(b)(2) build on the structure and standards of three earlier rounds of discovery amendments. But experience has shown that these earlier amendments were ineffective in reducing the cost and burden of discovery—largely because courts have been unable to resist the siren song of liberal discovery, particularly when faced with applying a toothless, meaningless good cause standard. Finally, review and application of the text of the discovery rules confirms that the amendments are wholly ineffective.
This serial, but ineffective, amendment of the discovery rules has created a great divide between (a) the stated intentions of the Rules Committee in amending the discovery rules, (b) the actual language of the amended discovery rules and (c) the experience of courts and practitioners in resolving discovery disputes under the discovery rules. The rules that establish the scope and limitations of discovery no longer mean what they say. Instead, they mean only what each judge thinks they ought to say or what the judge recalls that the rules used to say. To bridge this divide, I offer an interpretation of the discovery rules that gives meaning to the language of the rules, limits the cost and burden of discovery and is consistent with the Supreme Court’s prior (but ignored) interpretation of the good cause standard elsewhere in the discovery rules
California\u27s Estate Tax Dilemma
No full textAs a consequence of the Economic Growth and Tax Reconciliation Act of 2001 (2001 Tax Act), the federal government eliminated the estate tax credit for state death taxes paid after 2004. Due to an anomaly in California constitutional law, the legislature is prohibited from imposing a California estate tax as it had in the past because the California Estate Tax was tied to the federal death tax credit. The authors discuss the details of the problem and suggest alternatives to overcome the significant loss of revenue from wealthy estates
Comment on Michael A. Stegman et al.\u27s Preventive Servicing is Good for Business and Affordable Homeownership Policy : What Prevents Loan Modifications?
No full textThis comment describes the barriers to preventive servicing for securitized residential loans and assesses the importance of loan modifications, given the recent increases in default and foreclosure rates for subprime loans. Several hurdles slow or reduce such modifications, even those that help borrowers and investors alike. For example, self-interest may reduce servicers\u27 willingness to modify loans rapidly.
In addition, underlying securitization agreements may impede servicers\u27 ability and discretion in this area. Further, tax laws that govern a common securitization entity may limit modifications, as may accounting standards. Finally, tranche warfare, the sometimes contradictory fiduciary duties servicers have toward investors holding different tranches of securitized pools, may decrease their ability or their willingness to modify loans.
This comment concludes that barriers to effective loan modifications should be reduced or eliminated where feasible, but that the securitization of subprime loans creates risks for borrowers
Rule and Exception in Criminal Law (Or, Are Criminal Defenses Necessary?)
No full textThe advent of new defensive claims, such as the battered woman\u27s defense and the cultural defense, has led to debates that invoke a variety of important legal and political principles on both sides of the issues. But asking whether we ought to adopt new defenses in the criminal law raises a more fundamental question: why do we ever adopt defenses in the criminal law? Two simple reasons come to mind - (1) defenses may be necessary to our system of criminal law, or (2) defenses may be good for our system of criminal law. In this Article, I consider what such answers mean by exploring the relationship between offenses and defenses. I begin with an assumption that is implicit in much of criminal law scholarship: that harm-prevention is a central principle animating modern criminal law. Conceptualizing the criminal law according to the harm-prevention principle, I hypothesize that some defenses in fact further harm-prevention, thus making up part of the rules of the criminal law, while other defenses constitute exceptions embodying principles that outweigh society\u27s interest in preventing harm. Recognizing this dynamic between offense and defense facilitates evaluation of new defensive claims by clarifying the legal context for their debates and the interest-balancing that such evaluation entails
Sovereignty Migrates in US and Mexican Law: Transnational Influences in Plenary Power and Non-Intervention
No full textMexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico\u27s norm of non-intervention (NIV) and the US\u27 plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state\u27s domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico\u27s \u27no policy\u27 on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, \u27plenary,\u27 authority over it. Traditionally, PPD barred constitutional limitations to this migration authority.
Two events since 2001 inspire a transnational examination of changes in traditional sovereignty. First in Zadvydas v. Davis, the Supreme Court explicitly stated that the plenary power is \u27subject to important constitutional limitations.\u27 Second, Mexico actively lobbied US lawmakers for reforms to US immigration laws, an effort sometimes called the \u27whole enchilada.\u27 These developments point to the opposite of each doctrine\u27s conclusion, that: there are constitutional limits to PPD and foreign relations may influence another state\u27s lawmaking.
This examination is presented in five sections which: transnationally analyze international migration, describe PPD and NIV\u27s foundations in absolute sovereignty, present Mexico\u27s active foreign relations on migrants, discuss the US Supreme Court\u27s use of the canon of avoidance to limit PPD, and conclude how these changes suggest a transnational influence in legal sovereignty conceptions
