California Western School of Law

Fook-Lun Leung, Frankie

BOOK REVIEW
Constitutional Confrontation in Hong Kong-Issues and
Implications of the Basic Law, by Michael C. Davis, New York:
St. Martin's Press, 1990
REVIEWED BY FRANKIE FOOK-LUN LEUNG*
Two important legal documents have emerged that will govern the future
of Hong Kong after sovereignty over the existing British Colony reverts to
the People's Republic of China. They are (1) the Joint Declaration of the
Government of the United Kingdom and the People's Republic of China on
the Question of Hong Kong;1 and (2) the Basic Law of the Hong Kong
Special Administration Region of the People's Republic of China.2 The
former document is a bilateral treaty entered into between the Government
of Great Britain and the Government of the People's Republic of China. The
latter document is an enactment of the People's Republic of China. The
* Member of Bars of England, Hong Kong, and Califomia. Partner, Lewis, D'Amato,
Brisbois & Bisgaard. Adjunct Professor of Law, Loyola Law School. Member, Board of
Advisors, Hong Kong Archives Project, Hoover Institution, Stanford University.
1. The Joint Declaration is reprinted in Appendix 1 of the book under review. Also
reprinted in 23 INT'L LEGAL MATERIALS 1366 (1984). See Corwin, China's Choices: The 1984
Sino-British Joint Declaration and its Aftermath, 19 L. & POL'Y IN INT'L BuS. 505 (1987);
Mushkat, The Transition from British to Chinese Rule in Hong Kong: A Discussion of Salient
International Legal Issues, 14 DEN. J. INT'L L. & POL'Y 171 (1986); Chiu, The 1984 Sino-
British Agreement on Hong Kong and its Implications on China's Unification, 21 ISSUES &
STUDIES 13 (Apr. 1985); Comment, Self Determination in Hong Kong: A New Challenge to an
Old Doctrine, 22 SAN DIEGO L. REV. 839, 853-54 (1985); Wesley-Smith, Settlement of the
Question of Hong Kong, 17 CAL. W. INT'L L.J. 116 (1987); Slynn, The Hong Kong Settlement:
A Preliminary Assessment, 9 INT'L RELATIONS 1 (1987).
2. When the book under review was published, the Basic Law was only in draft and
reprinted in Appendix II of the book. Subsequent to the book's publication, the final version
of the Basic Law was promulgated on April 4, 1990, by Yang Shanghkun, President of the
People's Republic of China, at the 3rd Session of the 7th National People's Congress of the
People's Republic of China. The Basic Law is reprinted with a brief commentary in 29 INT'L
LEGAL MATERIALS 1511 (1990).
For literature on the Basic law, see Epstein, China and Hong Kong: Law, Ideology and the
Future Interaction of the Legal Systems, in R. WACKS, THE FUTURE OF THE LAW IN HONG
KONG 37-75 (1985); Constitutional Journey, in R. WACKS, THE FUTURE OF THE LAW IN HONG
KONG 76-126 (1989); The Basic Law and the Political Future of Hong Kong, CHINA NEWS
ANALYSIS, Sept. 15, 1988; H. CHIU, THE DRAFT BASIC LAW OF HONG KONG: ANALYSIS AND
DOCUMENTS (1988); Symposium on the Hong Kong Basic Law, 2 J. CHINESE L. 1 (1988); W.
MCGURN, BASIC LAW, BASIC QUESTIONS-THE DEBATE CONTINUES (1988); Fung, The Basic
Law of the Hong Kong Special Administrative Region of the People's Republic of China:
Problems of Interpretation, 37 INT'L & COMip. L.Q. 701 (1988); Fang Da, Basic Law and
Democracy, BEIJING REVIEW, Mar. 19-25, 1990, at 13; Lau, Breach of Promise? Draft Basic
Law Raises More Fears Than it Assures, FAR EASTERN ECONOMIC REVIEW, May 12, 1988, at
34; Davis, A Common Law Court in a Marxist Country: The Case for Judicial Review in the
Hong Kong SAR, 16 DEN. J. INT'L L. & POL'Y 1 (1987); Plunkett, Hong Kong's Post-199 7
Constitution-Some Comments on the Draft Basic Law, NEW ZEALAND L.J. 14, 17 (1989).
1
Fook-Lun Leung: BOOK REVIEW - Constitutional Confrontation in Hong Kong -- Issues
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188 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 22
latter document is an enactment of the People's Republic of China. The
book under review deals primarily with the second legal document, which
was then in draft.3 In short, the Basic Law is the constitution of Hong Kong
after July 1, 1997, when Hong Kong will become the Special Administrative
Region of the People's Republic of China. At the same time, the Basic Law
will also be a legislative instrument of the People's Republic of China.
The author is an American lawyer and a scholar of comparative constitu-
tional studies.' American constitutionalism is based on a written constitu-
tion, what has been interpreted by a prestigious and influential U.S. Supreme
Court enjoying a high degree of independence. The British tradition,
however, is based upon an unwritten constitutional practice.' In contrast,
the Chinese perspective of constitutionalism is based upon the ideological
premise of subjugation of individual rights to societal harmony, which is an
amalgam of Confucianism and Marxism. As such, a Chinese constitution,
even if written, does not purport to be declaratory of individual rights which
can be asserted by the citizenry to challenge governmental actions, perceived
or real, impinging on individual rights.' The author, by his training and
orientation as an American legal scholar, understandably embodies the
American bias in his writing. He attempts to deal with Hong Kong's future
constitutional development, which will be torn between the British and
Chinese dichotomy, in a comparative fashion. Hence, his book highlights
the inherent paradoxes and tensions of comparative legal scholarship.
As the author correctly and boldly points out, the Basic Law is a "hybrid
form of constitutionalism." 7 To what extent such a hybrid legal document
will receive such respectable treatment it deserves by a future government
which has not even been conceived at the time of writing, remains to be
assessed by future scholars. When one observes that the American written
constitution has been so differently interpreted at different stages of the
country's political development,' one cannot be certain that the Hong Kong
Basic Law will provide to Hong Kong's future citizenry the legal protections
so much treasured in a Western-style democracy. Therefore, can it be
argued that in the future, the spirits of the drafters of the Basic Law will be
everlastingly adhered to, a concern that has been so often vociferously
articulated in the constitutional debates in the United States? A legal
document, be it a constitution or a contract, can only prove its worth if it is
interpreted to accommodate myriad changes, some of which may not be
conceived by the drafters while at the same time it maintains a respectable
3. See supra note 2.
4. M. DAVIS, CONSTITUTIONAL CONFRONTATION IN HONG KONG-ISSUES AND IMPUCA-
TIONS OF THE BASIC LAw 145 (1990).
5. id. at 7.
6. Id. at 8-9.
7. Id. at 33.
8. For example, compare Plessy v. Ferguson, 163 U.S. 537 (1896) to Brown v. Board of
Education, 347 U.S. 483 (1954).
2
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BOOK REVIEW
consistency. A constitution which can be trodden upon by policymakers, or
swept aside at their whims, is not worth the paper it is written on!
The author is quick to draw the reader's attention to many potential
tensions. For example, the Chinese socialist style of legislative implemen-
tation would be at odds with a Hong Kong laissez-faire economic community
which has hitherto enjoyed a considerable measure of personal freedom.
This pertinent observation relates to two contradictory and ambiguous notions
enshrined in the Joint Declaration: The post-1997 Hong Kong will enjoy a
"high degree of autonomy," and it will have to operate with the People's
Republic of China's declared policy of "one country, two systems."" If
these two conflicting notions can ever be reconciled at all, it must be
achieved by compromises and political feats.
Free speech, being the most fundamental right of all rights, forms the core
and the best part of the author's scholarly analysis." Besides repeated and
elaborate allusions to American constitutional thinking, the author also makes
references to constitutions of other Asian countries. 2
If this book has a fault, it is that the chapter on the international status of
Hong Kong is too brief and cursory."3 Without any doubt at all, Hong
Kong has developed from an entrepot to a cosmopolitan city. Its future
relationships, economic and political, with countries other than the People's
Republic of China or Great Britain, will depend heavily on the judgments
and perceptions of these other nations. That was the reason given by the
Chief Executive of the leading Hong Kong bank, The Hong Kong and
Shanghai Banking Corporation, for the decision to reorganize its corporate
structure to form a London-based holding company instead of continuing as
a Hong Kong-registered corporation. 4
Absent continuing economic prosperity, the role which Hong Kong has
aptly played in contributing substantially to the economic viability of its
future sovereign master, the People's Republic of China, will be severely
undermined. In the final analysis, will the People's Republic of China be
persuaded solely by economic considerations in determining its future
governance of Hong Kong? Will other factors in the equation, such as
national pride, paternalistic patronage, or even political instability of the
People's Republic of China, upset the delicate balance of forces? History has
provided no precedent.
9. M. DAVIS, supra note 4, at 65-67.
10. Id.
11. Id. at ch. 4.
12. Id. at 127 (the Constitution of the People's Republic of Korea was compared).
13. See Mushkat, The International Legal Status of Hong Kong Under Post-Transitional Rule
10 HOUSTON J. INT'L L. 1 (1987).
14. A brass, not China, plate, THE ECONOMIST, Dec. 22, 1990, at 96.
1991]
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190 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 22
This book certainly is provocative in raising issues. It would be interesting
to hear what the author would have to say in perhaps, thirty years time.
Among all the publications on the same subject, this book is by far the most
scholarly written.
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English

BOOK REVIEW - Constitutional Confrontation in Hong Kong -- Issues and Implications of the Basic Law, by Michael C. Davis, New York: St. Martin\u27s Press, 1990

Bohrer, Robert A.

California Western Law Review 
Volume 28 Number 1 Article 4 
1991 
SYMPOSIUM - Alternative Fuels: Policy, Science, and Economics -- 
Foreward 
Robert A. Bohrer 
California Western School of Law, rab@cwsl.edu 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Bohrer, Robert A. (1991) "SYMPOSIUM - Alternative Fuels: Policy, Science, and Economics -- Foreward," 
California Western Law Review: Vol. 28 : No. 1 , Article 4. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol28/iss1/4 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more 
information, please contact alm@cwsl.edu. 
SYMPOSIUM
ALTERNATIVE FuELS: POLICY, SCIENCE, AND ECONOMICS
FOREWARD
ROBERT A. BOHRER*
Environmental issues have been at the forefront of our national political
debate since the 1988 Presidential Campaign and show no signs of abating.1
The recent White House efforts to reshape national wetlands conservation
policy have provoked a political firestorm,2 while the debate over the final
shape of the EPA's regulations under the 1990 Clean Air Act is heating up.'
One of the most hotly debated issues in environmental protection has been
the feasibility and desirability of requiring the use of alternative fuels in
motor vehicles. 4
The issue of alternative fuels is a complex one, involving questions of
economics, environmental quality, technological feasibility, and energy
security. Given the interplay of these different perspectives and the gulf
between the various disciplines that are drawn on to resolve them (econom-
ics, engineering, environmental science and epidemiology, and international
geopolitics), it is not surprising that the debate over alternative fuels has
often been more strident than illuminating. It is against this background of
increased national interest and increasingly divergent analyses that I
organized a symposium on alternative fuels at the American Bar Associa-
tion's 1991 Annual Meeting in Atlanta.5
In an attempt to give a fair hearing to all points of view and to cover most
of the relevant questions, the panelists at the symposium included: Michael
Bradley, Director of the Northeast States for Coordinated Air Use Manage-
ment, who is most directly concerned with the environmental impacts of
current and proposed alternative fuels; Professor James Hartnett, Director of
the University of Illinois-Chicago's Energy Resources Center, a vigorous
* Professor of Law, California Western School of Law.
1. Hoffman, Nominee's Beliefs Grounded in 2 Views of America, Washington Post, Oct. 30,
1988, at Al.
2. Clary, New Rules Could Result in Vast Wetlands Loss in Florida, Scientists Fear, N.Y.
Times, Nov. 30, 1991, at A25, col. 1.
3. Ross, Proposed Clean Air Rules Changes Spark Battle, L.A. Times, Nov. 21, 1991, at
A20, col. 1. "The dispute.., is said to have left EPA Administrator William K. Reilly deeply
incensed over what environmental critics and even some Administration sources view as a White
House attempt to weaken the key enforcement provisions of the 1990 Clean Air Act." Id.
4. Wald, 9 States in East Plan Strict Limits on Car Pollution, N.Y. Times, Oct. 30, 1991,
at Al, col. 1.
5. The program was entitled Alternative Fuels: Policy, Science, and Economics and was
held on August 9, 1991 at the Hyatt Regency Atlanta and was sponsored by the American Bar
Association Section of Science and Technology, and by the ABA Coordinating Group on Energy
Law.
1
Bohrer: SYMPOSIUM - Alternative Fuels: Policy, Science, and Economics --
Published by CWSL Scholarly Commons, 1991
CALIFORNIA WESTERN LAW REVIEW
critic of current oil and energy policy; Norman Hinman, Manager of the
Biofuels Program at the National Renewable Energy Laboratory, an expert
on the technological feasibility of improving the cost-effectiveness of ethanol
as an alternative fuel; Thomas Lareau, a senior economist with the American
Petroleum Institute, who staunchly defended the cost-effectiveness of
reformulated gasoline on environmental, economic, vehicle performance, and
energy security grounds; and David Rivkin, Jr., Associate General Counsel
for Legal Policy and Analysis in the Department of Energy, who provided
a background for and defense of the Bush Administration's National Energy
Strategy.
I am pleased that the results of the program will be made available to a
wider audience through this publication, for I believe that the program was
a significant contribution to the national debate on energy issues. Michael
Bradley's paper is an excellent overview of the alternative fuels issue from
the perspective of air pollution control, while Thomas Lareau's paper
provides a strong defense for reformulated gasoline as a response to those
concerns. Professor Hartnett's comparative analysis of U.S., German, and
Japanese energy policies and energy security is a strong indictment of U.S.
energy policy, while David Rivkin provides the generally conservative
defense of our current approach. Finally, Norman Hinman's paper provides
an important reminder that the technological component of the debate may
be changing faster than the economists and public policy experts are aware
and that the technology of tomorrow may provide radically different answers
to some of the fundamental questions in this field.
[Vol. 28
2
California Western Law Review, Vol. 28 [1991], No. 1, Art. 4
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SYMPOSIUM - Alternative Fuels: Policy, Science, and Economics -- Foreward

Beres, Louis René

SCHOLARLY OPINION - Toward Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and Jurisdictional Choices

Durgavich, Michael

Resolving Disputes Arising Out of the Persian Gulf War: Independent Enforceability of International Agreements to Arbitrate

Law Review, California Western

California Western Law Review 
Volume 28 Number 1 Article 14 
1991 
Books in Brief 
California Western Law Review 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Law Review, California Western (1991) "Books in Brief," California Western Law Review: Vol. 28 : No. 1 , 
Article 14. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol28/iss1/14 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more 
information, please contact alm@cwsl.edu. 
BoOKS IN BRIEF
CHEESE WEASEL. By Jim Ridings. Herscher, Illinois: Side Show Comics.
1991. Pp. 48. $2.95.
Cheese Weasel is a short and highly illustrated text that takes a humorous
look at the legal profession. This text pokes fun at the foibles and ironies of
humans, in particular, attorneys. The text is a series of vignettes exploring
the life of an attorney, Cheese Weasel, and his dealings with clients in a
variety of civil and criminal matters. The stories are perfect reading to
relieve stress in between complex litigation matters. However, if a reader
is sensitive to lawyer jokes, these stories may not be appreciated.
Cheese Weasel is the main character and the text follows him through his
misadventures as an attorney and pizza salesman. In the comic tradition,
Cheese Weasel has a sidekick, Emil, who serves as a foil to the somewhat
dull-minded attorney. Cheese Weasel reveals a darker side of the profession:
The attorney who can recite all the professional responsibility codes yet is
ever mindful of making a profit. Cheese Weasel's mottos are that there can
never be too many lawyers and even the losing attorney collects his fee. In
all cases, Cheese Weasel zealously represents his clients by litigating every
issue possible, even the irrelevant. This zest is only matched by his ardent
furor to collect a fee for every movement of his brain.
Reading Cheese Weasel will neither instruct practitioners in upcoming areas
of the law nor accurately recite present law. It does, however, offer many
ingenious suggestions on how to practice law. It may be a worthwhile
reference tool of do's and don't's for the young solo-practitioner who is
concerned with building a client base. The text does not portray Cheese
Weasel as Atticus Finch, but he never fails to make the reader smile at his
slight resemblance to some colleague or other. While the author states that
all characters are fictitious and any resemblance to persons living or dead is
purely coincidental, these stories all speak with some fact of how others view
the legal profession.
FEDERAL ESTATE AND GIFT TAXES EXPLAINED. By CCH Tax Law Editors.
Chicago: Commerce Clearing House, Inc. 1991. Pp. 464. $21.50.
This handbook for tax professionals, estate planners, and estate owners has
been updated to reflect all changes in the estate and gift tax provisions of the
U.S. Internal Revenue Code (Code) enacted by Congress through 1990. It
covers the three provisions of the Code concerning taxes on gratuitous
transfers of wealth-estate taxes, gift taxes, and generation skipping transfer
taxes (GSTr). Under the estate tax heading, the book discusses the Code
requirements for determining the gross estate, deductions from the gross
1
Law Review: Books in Brief
Published by CWSL Scholarly Commons, 1991
224 CALIFORNIA WESTERN LAW REVIEW [Vol. 28
estate, and the tax on the net estate. Under the gift tax heading, the book
discusses taxable gifts, gift-splitting, the annual gift exclusion, deductions and
exemptions, and computation of gift tax. Under the GSTT heading, the book
discusses the nature of the GSTT and its computation. In addition, the book
includes sample, filled-in specimens of tax returns and accompanying
schedules. Finally, the book includes extensive footnotes to primary sources
for further research.
Given the complexity of estate and gift taxation, no single volume can
exhaustively cover those provisions of the Code. Nevertheless, when
initially presented with an estate or gift tax problem, even the most
experienced professional is better served by first consulting a single source
which alerts the professional to the full scope of the problem and directs him
or her to other sources when needed. This handbook excellently fulfills that
purpose. Not only does it briefly and succinctly discuss all relevant
provisions of the Code, but it also directs the reader to primary sources for
further research. This book should be on the desktop of all tax and estate
planning professionals.
2
California Western Law Review, Vol. 28 [1991], No. 1, Art. 14
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Books in Brief

Wallace, J. Clifford

California Western Law Review 
Volume 27 
Number 2 A Focus on Justice Brennan Article 6 
1991 
OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal 
J. Clifford Wallace 
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Recommended Citation 
Wallace, J. Clifford (1991) "OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal," California 
Western Law Review: Vol. 27 : No. 2 , Article 6. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol27/iss2/6 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more 
information, please contact alm@cwsl.edu. 
OPINION OF A SCHOLAR
THE FUTURE OF THE JUDICIARY: A PROPOSAL
J. CLIFFORD WALLACE"
INTRODUCTION
On April 2, 1990, the report of the Federal Courts Study Committee was
presented to the leaders of the three branches of our federal government. This
was the first statutorily created three-branch committee to study the future of the
judiciary.
I. THE ORIGIN OF THE STUDY
This study of the future of the judiciary began at the request of Chief Justice
Warren Burger on July 31, 1980. He requested that "I undertake the task of
giving preliminary, exploratory thought to the problems that the judicial system
will encounter 10, 15 and 20 years from now and what types of questions we
should ask ourselves in progressing towards reasonable solutions to those future
problems."' After my investigation, I concluded that "absent an inordinate
horizontal increase in the court system, certain changes will need to be made in
our system and procedures."2
I did not intend to produce an empirical study, but rather to make the
inquiries that must precede more specific research by identifying problems and
suggesting methods for analyzing them. I found that, barring a sudden drastic
increase in the number of judges, our system will face a need for changes in both
how disputes will be decided and what disputes will be decided. To accommo-
date a new era, different types of dispute resolution models are needed, and
changes in the present mainstream court model must be made. Of course, it is
easy to cry for revolution. However, we must accommodate these changes
without interfering with the required independence of the judiciary and without
modifying the important basic functions of the judicial system which have
benefitted our country over the years.
* Chief Judge, United States Court of Appeals for the Ninth Circuit. This Opinion is an
adaptation of a commencement address given by Judge Wallace at California Western School of Law
on May 6, 1990.
1. Working Paper-Future of the Judiciary, 94 F.R.D. 225, 226 (1981) [hereinafter Working
Paper].
2. Id at 228.
1
Wallace: OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal
Published by CWSL Scholarly Commons, 1990
CALIFORNIA WESTERN LAW REVIEW
II. A Two-STEP MODEL
I recommend attacking the problem with a two-step approach. "The first task
would be to develop the tentative blueprint [of what would be necessary for the
judiciary] to meet future needs."3 This would require a multi-discipline
approach which would bring together and analyze all of the relevant studies
made thus far, and authorize future additional studies necessary to provide,
within rather wide boundaries, some sense of the needs of the judiciary in the
next one or two decades.
The second step would be to establish a long-term oversight entity This
oversight entity would make annual reports to the President of the United
States, the Chief Justice of the United States, and Congress, identifying the
appropriate steps in each year which would meet the needs of the judiciary in
the next ten or twenty years. As more data becomes available, this oversight
entity would also make modifications in the blueprint for the future of the
judiciary.
III. JUDICIAL AND LEGISLATIVE SUPPORT FOR CHANGE
The idea never would have progressed any further than my report without
judicial and legislative leadership and encouragement. Many key legislators had
to be convinced and compromises had to be made. Chief Justice Burger was an
ardent supporter, and Senator Howell Heflin's leadership was evident from the
outset. In the 97th Congress, Senator Heflin of Alabama introduced Senate Bill
1530 which incorporated the plan suggested in my proposal.5 Later, Senator
Thurmond, together with Senators Heflin, DeConcini, Simpson, and East,
introduced Senate Bill 675 which contained a modified version of the proposal
based on the same principle.6 That Bill was passed in the Senate, but no action
was taken in the House. In the 98th Congress, Senator Heflin introduced Senate
Bill 381, a bill almost identical to the partially successful Senate Bill 675.7 The
Senate Judiciary Committee approved this Bill in June 1984. Finally, in
November 1988, the 100th Congress enacted the legislation creating the Federal
Courts Study Committee.
3. Id at 225.
4. Id at 225, 235-36.
5. Wallace, Judicial Reform and the Pound Conference of 1976, 80 MICH. L RLrv. 592, 595
(1982). Senate Bill 1530 was entitled "A Bill to Establish a Federal Courts Study Commission and
a Federal Courts Advisory Council on the Future of the Judiciary." S. 1530, 97th Cong., 1st Seas.,
127 CONG. REC. 17991-92 (1981).
6. S. 675, 97th Cong., 1st Sess., 127 CONG. REc. 3969-70 (1981).
7. S. 381, 98th Cong., 1st Sess., 129 CONG. REc. 1397-98 (1983).
8. Federal Courts Study Act, 28 U.S.C. § 331 note (1989), Pub. L. No. 100-702, §§ 101-09,
102 Stat. 4644.
[Vol. 27
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THE FUTURE OF THE JUDICIARY
It took eight years of constant attention and the indispensable support of the
judiciary to accomplish this step. Although the final Bill did not incorporate the
entire theory of my proposal, the basic thrust of treating the judiciary as an
entity which, like modem businesses, requires long-term planning, was adopted
in the final legislation. In addition, the recommended concept of a three-branch
approach to problem-solving was accepted.
IV. FUTURE PLANNING APPROACHES
But what about the future of long-term planning? Consideration should be
given to my suggested two-step approach. I had in mind an initial two-year
study;9 the Federal Courts Study Committee, however, was given only fifteen
months. Subsequently, the Committee properly recognized the need for
additional study and investigation."0 "It is not enough to develop a plan. There
should be a method to reevaluate the plan as circumstances change, new facts
are found, and new projections are developed. In addition, there should be some
way of determining whether what is currently being considered to modify court
output and input is consistent with the long-range plan."" A committee or
commission could make recommendations as to what legislation would be
appropriate in progressing towards the demonstrated goals based on this
committee's study. The original proposed legislation called "for the establish-
ment of a permanent advisory council made up of representatives from each of
the three branches of the federal government. The council would have
continuing responsibility to recommend ways in which future judicial needs can
be met."12
I recommend that the Congress adopt the second phase of my original
proposal. This would require that either the Federal Courts Study Committee
or an independent, but similar, committee be established on a long-term basis.
This committee would make specific annual proposals for consideration by the
President, the Chief Justice, and Congress. A long-term committee working
towards an eventual solution in an incremental manner is less disjointed,
provides an evolutionary rather than revolutionary approach, and allows some
degree of experimentation as the process continues. Following up with the
second phase will also assure that the Report of the Federal Courts Study
Committee will not end up on dusty shelves-as so many studies do-but rather
it will be a plan to be implemented on an incremental basis. A continuing
committee with members from the three branches of government will also add
legislative reality to the work.
9. Wallace, supra note 5, at 595.
10. JUDICIAL CONFERENCE OF THE UNITED STATES, FEDERAL COURTS STUDY COMMITrEE,
REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 48, 51-52, 67, 107-08, 186 (Apr. 2, 1990).
11. Working Paper, 94 F.R.D. at 235.
12. Wallace, supra note 5, at 595.
3
Wallace: OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal
Published by CWSL Scholarly Commons, 1990
CALIFORNIA WESTERN LAW REVIEW
My plea is simple-we must continue to explore ways to improve the
administration of justice. While the recommendations in the Committee Report
are significant and should be studied, what we have learned from the study
process may be even more important. In spite of my view of the necessity to
maintain the separation of powers in our three branches of government, there
is a place for cooperation among the branches in solving our problems in judicial
administration. This is a start, but only a start A decade of effort should not
meet with speedy demise.
V. INVOLVEMENT OF THE PRIVATE SECTOR
It will not be enough simply to conduct government studies. The private
sector must also accept responsibility if we are to maintain our quality of justice.
First, law schools should provide research to determine what future structural
and procedural changes should be made throughout our system of justice. In
making this suggestion, I am consciously drawing an analogy from my recom-
mended development of a plan for the future of the judiciary. In my proposal,
it is obvious that research is the key, and that study is required. The need for
research throughout the legal system is no less pressing. As President Derek
Bok of Harvard University stated:
The public complains about the cost of legal services, but no
one has discovered how much money we spend each year on
our legal system. Communities experiment with alternative
forums for resolving disputes, but do not evaluate these
experiments systematically to learn which ones work and how
well .... [L]awyers are not making a[n] ... effort to evaluate
provisions for appeal, for legal representation, for adversary
hearings, or for other legal safeguards to see whether they are
worth in justice what they cost in money and delay.
If the necessary research is to go forward, legal scholars must
help organize it and participate in it, albeit with the aid of
interested colleagues from other disciplines.13
Relying on law schools for research, we look to a historical strength of
purpose, although unfulfilled in some areas. As Dr. Calvin Woodard, the widely
recognized historian pointed out, the "new law school" of 100 years ago
consciously replaced practitioner faculty with "researchers."14 There are many
13. Address by Derek Bok, Law and Its Discontents: A Critical Look at Our Legal Systen
Association of the Bar of the City of New York Thirty-Seventh Annual Benjamin Cardozo Lecture
(Nov. 9, 1982), reprinted in 38 THi- REcoRD 12, 27-29 (1983).
14. Address by Honorable J. Clifford Wallace, LegalEducation and theProfession-Approaching
the 21st Century, McGeorge Law School (ABA Litigation Section) (Apr. 12, 1984) (available at
California Western Law Review offices).
[Vol. 27
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THE FUTURE OF THE JUDICIARY
law school faculty members who do provide us with research and insight into the
nature of the problems our courts face. These professors often challenge our
basic assumptions about the limits of the current legal system in ways that may
help shape our future. Yet too often the law schools' contribution is exclusively
in the area of substantive law. I believe that law schools have excess resources
for purposeful research, and that they should be called upon to use that capacity
in planning for the future of our judicial system.
In examining the future of the judiciary, I argued for a working group, with a
broad base, that could effectively develop an ongoing plan.15 It would be
beneficial to extend the working group beyond judges and lawyers, to representa-
tives of Congress, lay members, and the private sector. The organization could
function as a center of a web, bringing to one central place all private and public
thought and experience on this problem. My aim is for one specific new
structure to undertake an intense analysis of the judiciary. The law schools
already provide formal structures with access to many of the same varieties of
experience and viewpoint-if only they will make a concentrated effort.
The responsibility cannot end, however, at the law school gate. Today's lawyer
must also contribute by assuming his or her share of the problem-solving duty.
From the formation of our country, lawyers have been leaders in finding
solutions to society's needs. One need only look to the founding of our country
for a clear example.
Two hundred and four years ago, it was hot, humid, and uncomfortable in
Philadelphia. As the delegates from twelve of the thirteen states met in
Independence Hall, ostensibly to amend the Articles of Confederation, a
movement began which laid the foundation for a free people and which
ultimately provided leadership around the globe. Probably no one foresaw the
future effect of their handiwork. Their's was the arduous task of laying brick
upon brick with only a very limited view of what the ultimate result would be.
They moved forward day by day as if directed and motivated by a non-earthly
force. They overcame critical obstacles, debated important issues, and made
necessary compromises. Finally, on September 17, 1787, their work was
completed-a work that British Prime Minister William Gladstone would later
describe as "the most wonderful work ever struck off at a given time by the brain
and purpose of man."16
These founders were a hearty lot. Thirty-five of the fifty-five participants had
a college education which required them to be conversant in both Latin and
Greek. Several were historical and political scholars. They were familiar with the
works of political philosophers such as Locke and Montesquieu. They had
participated firsthand in the art of government during the colonial years, and in
the eleven years since independence. They were a unique group: Washington,
Madison, Hamilton, Franklin, Gerry, Sherman, Morris, Rutledge, Randolph, and
Mason. These men could have been great in any age, but were especially great
15. Working Paper, 94 F.R.D. at 235.
16. E. GERHART, QuoTE IT! MEMoRABLE LEGAL QUOTATIONS 107 (1969).
19911
5
Wallace: OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal
Published by CWSL Scholarly Commons, 1990
CALIFORNIA WESTERN LAW REVIEW
in their day. Were lawyers involved? Of the fifty-five founders, thirty-three were
lawyers. The need for lawyer leadership is of no less importance today.
How can lawyers prepare for this challenge? Law schools should instill in new
lawyers the tools to grapple with a largely unknown practice. If you assume, as
I do, that substantial changes in our justice system will occur in the next two
decades, how can lawyers be prepared to deal with and adapt to the changes?
Lawyers need to provide leadership in solving systemic legal problems, but
courses on problems in the legal system are almost always relegated to an
elective slot. Few students receive the education that would help them provide
leadership to assist in the changes that will be required. A striking example
from my background involves the subject of judicial administration. A few years
ago, I taught a course on this subject. Although limited textbooks existed, the
type of course I wanted to teach required construction practically from the
ground up. I received no personal help because no faculty member had taught
a judicial administration course before that time.
Therefore, I believe that lawyers must do more than practice law. They must
be aware of the need to improve the system. They can better carry out this
function if law schools provide courses in judicial administration.
CONCLUSION
To meet the great problems of the future of our judiciary, all branches of
government will need to work together, each acting in its separate role but
cooperating on the goal of justice. Similarly, all parts of our profession must
cooperate. The law schools should not lose sight of the universe of ouir legal
system-all the institutions of law and actors of law-by focusing only on an
interesting planet or two. Together with research, a dedication to problem-
solving attitudes and skills, and a cultivation of leadership and professionalism,
law schools can greatly assist in the effort to meet the upcoming years of change
successfully.
But the major burden of solving systemic needs of an ever-growing judicial
system will rest on the shoulders of law graduates. Service to clients will be a
primary obligation. But graduates must not lose sight of the need also to be part
of solving the administration of justice problems which will arise in the future.
Without a functioning system, clients will have no place to have their disputes
resolved. Indeed, it is hard to imagine the practice of law with a judicial system
bankrupt from overload.
The history of our profession and our law schools has been one of responding
to society's changing needs. As we pass our bicentennial, what better time to
prepare for the changes of the upcoming one hundred years.
[Vol. 27
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California Western Law Review, Vol. 27 [1990], No. 2, Art. 6
https://scholarlycommons.law.cwsl.edu/cwlr/vol27/iss2/6


OPINION OF A SCHOLAR - The Future of the Judiciary: A Proposal

International Law Journal, California Western

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 21 1990-1991 NUMBER 2
TABLE OF CONTENTS
OPINION OF A SCHOLAR
The Global Refugee Crisis: A Search for Solutions
Dr. Ranee KL. Panjabi .................................... 247
ARTICLEs
Negligence Under the Netherlands Civil Code-An Economic Analysis
Elizabeth van Schilfgaarde .................................. 265
The Legal Control of Nuclear Energy Between States
Peter Riley . .............................................. 303
COMMENTS
An FDA-EEC Perspective on the International Acceptance of
Foreign Clinical Data
John J. Gorski . ........................................... 329
Stemming the Flow: The Role of International Environmental
Law in Seeking a Solution to the Sewage Treatment Crisis
at the Tijuana-San Diego Border Region
John Altom are . ........................................... 361
BOOK REVIEW
Caribbean Perspectives on International Law and Organizations
Reviewed by Daniel C. Turack ............................... 423
BOOKS RECEIVED ......................................... 427
Cite as 21 Cal. W. Int'l L.J. _ (1990)
© 1991 California Western School of Law
1
International Law Journal: Table of Contents
Published by CWSL Scholarly Commons, 1991
CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
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Riley, Peter

The Legal Control of Nuclear Energy Between States

Swan, George Steven

SCHOLARLY OPINION - Presidential Undeclared Warmaking and Functionalist Theory: Dellums v. Bush and Operations Desert Shield and Desert Storm

Moskowitz, Adam L.

Criminal Environmental Law: Stopping the Flow of Hazardous Waste to Mexico