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Law Review, California Western

California Western Law Review 
Volume 25 Number 2 Article 1 
1-1-1989 
Table of Contents 
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Law Review: Table of Contents
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN LAW REVIEW
VOLUME 25 1988-1989 NUMBER 2
CONTENTS
ARTICLES
SMOKING IN THE WORKPLACE: ACCOMMODATING
DIVERSITY .............................. John C. Fox
& Bernadette M. Davison 215
PERSONAL CHOICE AND CIVIL CODE SECTION
1714.45: AN EPILOGUE FOR CALIFORNIA'S SMOKING
AND HEALTH LITIGATION ............ Martin R. Glick
& H. Joseph Escher III 239
THE TRIAL COURT'S RESPONSIBILITY TO MAKE
CIGARETTE DISEASE LITIGATION AFFORDABLE
AND FAIR ....................... William E. Townsley
& Dale K. Hanks 275
IMPORTANT RULINGS EMANATING FROM THE
Cipollone TOBACCO TRIAL ........... Alan M. Darnell
& Meryl G. Nadler 323
BOOK REVIEW
ENVIRONMENTAL TOBACCO SMOKE .......... Carl B. Meyer 341
COMMENTS
STIGMA DAMAGES: THE CASE FOR
RECOVERY IN CONDOMINIUM CONSTRUCTION
DEFECT LITIGATION .................. Charles L. Stott 367
CONTORTING THE LAW: THE GOVERNING
STATUTE OF LIMITATIONS IN ARBITRATING MEDICAL
MALPRACTICE CLAIMS ............... Felicia R. Solito 395
BOOKS IN BRIEF ........................................ 423
BOOKS RECEIVED ...................................... 425
VOLUM E INDEX ........................................ 427
0 1989 by California Western School of Law
Cite as 25 CAL. W.L. REV. 000 (1989)
2
California Western Law Review, Vol. 25 [2015], No. 2, Art. 1
https://scholarlycommons.law.cwsl.edu/cwlr/vol25/iss2/1
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Law Review: Table of Contents
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English

McNew, Dora L.

Blocking Laws and Secrecy Provisions: Do International Negotiations Concerning Insider Trading Provide a Solution to Conflicts in Discovery Rules

Chayet, Zack V.

THE SELECTION OF MEXICAN FEDERAL JUDGES
Dr. Zack V. Chayet
I will address briefly certain idiosyncracies that will give you a
background, a reference, to why and how justices of the Supreme
Court of Justice in Mexico as in the United States tend to be influ-
enced by the political system of the two countries. Suffice to say
that it is with distinct pride that this law school is hosting this in-
ternational judges conference. I am certain that the participation of
the Mexican and American federal judiciary can be of constructive
impact in order to establish a dialogue that creates a level of under-
standing and trust. So, let me identify the key issues related to the
process of selection of Mexican and U.S. federal judges. As a pro-
fessor of international and comparative law, I will compare the
processes addressing the areas of importance and concern in these
two systems. As we all know the Civil Law System covers the Mex-
ican composition of the judiciary. And as such, the importance of
the judiciary is somehow placed in a paternalistic situation. Mexico
and the writ of Amparo is the champion of state abuse protection.
On the other hand, the United States is linked to the common law
world which gives to the judiciary a different context than in Mex-
ico. In the United States the judiciary with its independent position
determines the socio-political mutations of the system. It guides
and establishes the modernization of the law of the land. Even
though we are different in the basic systems of judicial composition,
we are certainly united by the mere fact that both countries utilize
their federal court system for the purpose of affirming pure consti-
tutionalism. Both countries being so similar from a pure constitu-
tional point of view, struggle to protect constitutional rights and in
both countries the respective supreme court and the federal courts
are in a struggle as front runners of this theory. In Mexico, for
instance, the federal power is the custodian of the constitution by
way of the writ of Amparo. However, the Amparo in certain ways,
as I see it, must not be used as a screen to violate the law. Now in
the U.S., by constitutional mandate, the judiciary interprets and
applies the law. However, American law has two distinctive ingre-
dients. One a similar variety of federalism. The other, a common
law tradition. With these two components the federal judiciary is
1
Chayet: The Selection of Mexican Federal Judges
Published by CWSL Scholarly Commons, 1989
CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
charged with interpreting the most democratic written national
constitution in use today. In addition, the laws in the United States
are derived from distinct independent decisions so called American
common law. This becomes the foundation of the legal system it-
self. Therefore American law is essentially judge made. Even
though many aspects are controlled by legislation, the courts con-
tinue to exercise power in their role as interpreters and creators.
Now when I am talking about idiosyncracy of the court system, I
am addressing the fact that there is a system by which from a polit-
ical point of view, Mexico has appointed its justices of the supreme
court and the federal judiciary and in the United States also there
is a political system by which the justices of the supreme court and
the federal judiciary are appointed. The similarities are that in both
cases, they are appointed. They are commissioned. Like in most
cases in the United States, judges can be commissioned, appointed,
they can be elected, some of them for an original tenure of certain
amount of years, some of them for a permanency of life. In Mexico,
as well as in the United States, it is the same procedure mostly
when it comes to the appointment itself. It is a presidentally ac-
cepted appointment. It is the idea of the President being the central
figure. The president of Mexico appoints the federal judiciary. And
by that I mean whether directly or by recommendation, suggestion,
or by a background check given to the president by the executive
power of the candidates that may be appointed. And by back-
ground, I mean by political parties in the United States as well as
in Mexico which are in power. I am of the opinion that in Mexico,
as in the United States, the judiciary at the federal level establishes
guidelines for stability, prosperity, exercising a responsible political
role independent in essence. In the United States the supreme court
has been created to answer the questions of conservative or liberal
philosophies in accordance of the political composition of the
courts. Although Congress often creates decisional law out of a po-
litical endeavour by subsequent legislation, it certainly gives the
court the independence required. So courts do keep their indepen-
dence. But there is no doubt that there is a political endeavour in
accordance with the philosophy that prevails at that particular
time. In Mexico the continuity of one political platform in the fed-
eral executive branch will dominate at all times the position of the
supreme court of the land. These statements are derived from the
way that the selection and appointment of the federal judges are
carried out in both countries. Of course in the United States by
[Vol. 20
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California Western International Law Journal, Vol. 20, No. 1 [1989], Art. 3
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MEXICAN FEDERAL JUDGES
constitution article 3 section 1 "the judicial power of the United
States shall be vested in one supreme court and in such inferior
courts as Congress may from time to time ordain and establish."
Congress initially utilized this directive to create a federal court
structure by enacting the Judiciary Act of Sept. 24, 1789, and at
present this system is composed by district courts in the original
federal jurisdictions and circuit courts of appeal, with initial federal
appellate jurisdiction and the United States Supreme Court with
final appellate jurisdiction. Now all of these areas of political in-
volvement in Mexico as well as in the United States are well identi-
fied in accordance with the making of the Supreme Court. Since
the creation of the Supreme Court of the United States they went
from ten justices to six justices and finally in the year of 1869 they
finally settled at nine justices. Presidents of the United States have
appointed justices that conform to the needs of the court; from
some presidents that have had the opportunity to appoint one jus-
tice since 1823 up to the opportunity to appoint, like President
Roosevelt, appointing from the area of 1937 to 1943 nine justices.
The conformation of the court had to do with the political life of
the country. Those days to appoint a justice and to have a court
that could follow a liberal philosophy was not precisely one that
prevailed. That idea prevailed during President Franklin D.
Roosevelt and the court overturned quite a few of the decisions
granted to be conservative. I believe that the position of the United
States as far as political influence is well known and it is in accor-
dance with the political party that is in power, and it is also a situa-
tion whereby the justices of the Supreme Court are appointees for
life, and they can stay in that position if there is no impeachment
that will remove them from their position. I believe that the confir-
mation of the supreme court and the federal judiciary in the United
States somehow resembles the Mexican confirmation by virtue of
also the political life and the political basis of how the federal Mex-
ican judiciary is appointed. However, the only difference is there
are no political parties to worry about at this point since what we
see in the appointment of justices of the supreme court in Mexico is
based only as a product of the political party that is in power. Since
presidents appointing supreme court justices have been throughout
the years from the same philosophical training. Supreme Court Jus-
tices in Mexico are appointed, and as long as "they don't misbe-
have" and they fear impeachment they may stay in their position
for as long as there is no reason to remove them from the position.
19891
3
Chayet: The Selection of Mexican Federal Judges
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4California Western International Law Journal, Vol. 20, No. 1 [1989], Art. 3
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The Selection of Mexican Federal Judges

BOOKS IN BRIEF
THE EXCLUSIVE ECONOMIC ZONE IN INTERNATIONAL LAW. By
David J. Attard. New York: Oxford University Press. 1987.
Pp. 350. $78.00.
In 1947, Chile became the first state to extend national sover-
eignty to a two hundred nautical mile maritime resources zone. So
began the seaward extension of national jurisdiction which has
gained international stature and recognition as the Exclusive Eco-
nomic Zone (EEZ).
During the time-frame of the many phases of the Third United
Nations Conference on the Law of the Sea (UNCLOS III), the
EEZ concept was transformed into customary international law.
The Exclusive Economic Zone in International Law is a thor-
oughly researched and excellently crafted study of all that you ever
wanted to know about the EEZ, to use a colloquial phrase.
The author commences his study by tracing the developments of
the EEZ concept between 1945 and the UNCLOS III Conference,
developments that demonstrate the classic mare clausum/mare
liberum dilemma. He then examines proposals on the EEZ that
were incorporated into the various UNCLOS III texts. The status
and evidential value of the proposals are assessed in terms of the
extent to which they reflect or contradict international law. Attard
also outlines the controversial issues facing the Conference and con-
siders the work of the Castafieda-Vindenes Group on the subject.
A preliminary consideration of four major judicial decisions de-
livered between June 1977 and May 1985 precedes an in-depth
analysis of the EEZ model in the 1982 Convention. With regard to
the EEZ's judicial status, the author views the EEZ to be sui
generis rather than part of the territorial waters or part of the high
seas.
The appearance and acceptance of the EEZ has had an impact
on other aspects of the law of the sea. In a long chapter, the author
provides detailed coverage of the relationship of the EEZ with
other regimes; namely, the high seas, the territorial sea, the contig-
1
Law Review: Books in Brief
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
uous zone and the continental shelf. Notable differences and as-
pects of harmonization are discussed. Attard utilizes national legis-
lation and state practice, the views of writers, existing treaty law,
the position of UNCLOS Conference Committees, recommenda-
tions of other conferences, and judicial decisions, to alert the reader
to potential controversies. He concludes that the freedoms associ-
ated with these other regimes may be limited or disturbed by the
exercise of EEZ rights.
The provisions in the 1982 Convention dealing with conservation,
exploitation, management and utilization of living resources in the
EEZ are examined to determine the extent to which they mirror
customary international law. A cross-section of State practice as
shown through national legislation, marks the way for future
problems.
Theoretically, the 1982 Convention offers geographically disad-
vantaged States the right to participate in the exploitation of living
resources in the EEZ. The author examines the relevant provisions
of the Convention which establish this right, and alludes to the dif-
ficulties of implementation. He then reviews the European Eco-
nomic Community (EEC) approach in relation to its members and
non-EEC States regarding the utilization of living resources in
EEC waters. Basically, the disadvantaged nations remain out in the
cold on the issue of marine scientific research in the zone.
In a careful assessment of the problems inherent in delimitation
of the EEZ's boundary, the author sees national interests that in-
hibit agreement on an objective and workable legal formula. For
example, the autonomy of the EEZ and continental shelf regimes
means that it is possible for the EEZ boundary between two States
to be incongruous to the shelf boundary. Attard envisages equitable
solutions and highlights the approaches taken in the 1977 Channel
Award, the 1982 Tunisia/Libya Judgment, the 1984 Gulf of Maine
Judgment and the 1985 Guinea/Guinea-Bissau Award.
The study concludes with an examination of the current status of
the EEZ. Once again, the author amasses detailed references to
national legislation and state practice in support of what has be-
come the customary law of the EEZ, found in Part V of the Con-
vention. Any gauge of his accuracy will have to wait until proce-
dures for settlement of disputes concerning the 1982 Convention on
the Law of the Sea are activated or other judicial pronouncements
are forthcoming.
In addition to a very good bibliography and workable index,
[Vol. 19
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California Western International Law Journal, Vol. 19, No. 2 [2015], Art. 6
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BOOKS IN BRIEF
there are a number of helpful and informative aids, including: ta-
bles of relevant treaties; EEZ and Economic Zone Claimants;
coastal, shelf and EEZ characteristics of States; maritime delimita-
tion agreements; fishery agreements; national legislation; and cases,
with citations of their location. A great deal of scholarship, skill
and thought have gone into this well-produced book. The precepts
of this study are being rapidly absorbed by those States recognizing
the Exclusive Economic Zone and are included in the package-deal
1982 Convention, making this study all the more valuable for those
concerned with the Law of the Sea.
Reviewed by Professor Daniel C. Turack
Capital University Law and Graduate Center
ESCALATING DISPUTES: SOCIAL PARTICIPATION AND CHANGE IN
THE OAXACAN HIGHLANDS. By Philip C. Parnell. University of
Arizona Press: Tuscon, Arizona. 1988. Pp. 175. $25.00.
In Escalating Disputes: Social Participation and Change in the
Oaxacan Highlands, the shifts and changes in Mexico's economy
during the 1970s and 1980s are examined from both an anthropo-
logical and sociological point of view. The book is a study of the
complex interface between local customary law, village politics, and
state government and its legal system.
Parnell examines the important role that dispute plays in the
everyday life of peasant villagers in a small representative village in
Mexico. The author finds that through disputes, they communicate
their views, check up on one another, express their anger, and re-
lieve the tensions bred into village conflicts.
ISLAMIC CRIMINAL LAW AND PROCEDURE. By Matthew Lippman,
Sean McConville and Mordechai Yerushalmi. Praeger Publish-
ing: New York, New York. 1988. Pp. 168. $35.95.
Relatively little has been written in English about the Islamic
legal tradition, a serious deficiency in light of recent tensions in the
Middle East. The body of Islamic law, or Shari'a, is central to the
understanding of Islamic society and the current conflict between
fundamentalism and modernism in the Islamic world. The estab-
lishment of the Shari'a signified a progressive step in the develop-
ment of legal practice as it modified the Islamic customs of retalia-
tion and blood- revenge. Nevertheless, Islamic law differs from
common and civil codes due to its religious and virtually unchange-
1989]
3
Law Review: Books in Brief
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
able nature. While acknowledging the regional differences in the
local characteristics of the Shari'a, this work provides a straightfor-
ward introduction to procedure and punishment, discussing the ma-
jor concepts, principles, and practices.
The book begins with a discussion of the history and spread of
Islam and outlines the origins of Islamic law. Then it discusses sub-
stantive criminal law, procedure and punishment. The work con-
cludes with a discussion of the role of Islamic law in the twentieth
century. The final chapter also identifies a number of issues that
warrant further study. Unlike other treatments of Islamic culture,
which make only passing reference to the body of law, and unlike
more academic discussion of the Shari'a, this guide is useful to the
academician and the general reader alike by placing Islamic law in
the context of philosophy and administration. It provides important
background for courses in comparative criminal procedure, compar-
ative legal systems, and comparative politics in the Middle East.
RESERVATIONS AND INTERPRETATIVE DECLARATIONS TO MULTI-
LATERAL TREATIES. By F. Horn. Elsevier Science Publishing
Company: New York, New York. 1988. Pp. 514. $131.50.
States restrict their commitment to treaty obligations by means
of reservations. The objective of Reservations and Interpretative
Declarations to Multilateral Treaties is to clarify the concept of
reservation and facilitate the implementation of the reservation re-
gime under the Vienna Convention on the Law of Treaties.
The work suggests that Article 2 of the Convention is not suffi-
ciently clear when it states that a reservation "excludes or modifies
the legal effect of certain provisions under the treaty." The author
examines the reservation rules in the Vienna Convention and gives
a sample outline of reservations and objections on the basis of trea-
ties deposited with the United Nations Secretary-General. He tries
to present distinguishing criteria between statements that are inter-
preted as reservations and those that are interpreted as declara-
tions. The book further analyzes the effect of accepted and disap-
proved reservations with the aid of the Hohfeldian concepts of jural
correlates and opposites, a method not used before with respect to
reservations.
[Vol. 19
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California Western International Law Journal, Vol. 19, No. 2 [2015], Art. 6
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BOOKS IN BRIEF
TREATY CONFLICT AND POLITICAL CONTRADICTION: THE DIALEC-
TIC OF DUPLICITY. By Guyora Binder. Praeger Publishers: New
York, New York. 1988. Pp. 240. $39.95.
One of the first books generated by the new and controversial
movement in jurisprudence known as critical legal studies, Treaty
Conflict and Political Contradiction: The Dialectic of Duplicity ex-
plores the problem of treaty conflict in international law. Specifi-
cally explored are the problems inherent in inconsistent commit-
ments by one nation to two or more other nations. Binder's work
provides students and scholars of international law with an illumi-
nating survey of the treaties and the theories of the State, in inter-
national jurisprudence.
The author further examines the structure of treaty law as the
expression of a fundamental conflict of values and interests in world
politics. Binder explores the continuing debate over the relative va-
lidity of conflicting treaty obligations, illustrating his arguments
with insights into the background of the current crisis in the Mid-
dle East: the Egyptian-Israeli peace process, Zionism and Palestin-
ian nationalism. By applying the methods and insights of critical
legal studies to the analysis of an important issue in international
law, Binder examines the complex ways in which nations relate to
one another.
LATIN AMERICAN STATES AND POLITICAL REFUGEES. By Keith W.
Yundt. Praeger Press: New York, New York. 1988. Pp. 256.
$37.50.
Beginning with the Nicaraguan revolution of 1978 and the subse-
quent violence that engulfed the Central American States, Latin
American refugees have sought territorial asylum in growing num-
bers. Latin American States and Political Refugees focuses on
these refugees using a regime analysis, a method whereby princi-
ples, norms, and social institutions are studied to identify the gen-
eral obligation owed to refugees. The central concern of this study
is the compatibility of the rules, norms, procedures and social insti-
tutions established under the United Nations' refugee regime.
Yundt begins his study with an explanation of the meaning of
"regime." Throughout the book, Yundt examines the components
and usefulness of an international regime as applied to the practice
of Latin American states toward political refugees. The book fur-
ther examines the history and current status of colonization and
1989]
5
Law Review: Books in Brief
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388 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 19
immigration legislation in Central and South America.
Later chapters discuss the role of international organizations, in-
cluding the League of Nations and the Organization of American
States, in providing international legal protection to refugees. The
global refugee system, its history, and how it relates to the inter-
American system is also examined. A well researched book, Latin
American States and Political Refugees will appeal to students and
scholars of international organization and human rights law, as well
as to the social and political sciences.
6
California Western International Law Journal, Vol. 19, No. 2 [2015], Art. 6
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Books in Brief

Library, California Western

BOOKS RECEIVED
INTERNATIONAL BUSINESS AND NATIONAL JURISDICTION. By A.D.
Neale and M.L. Stephens. Oxford University Press: New
York, New York. 1988. Pp. 216. $55.00.
INTERNATIONAL LAW AND THE USE OF FORCE BY NATIONAL LIB-
ERATION MOVEMENTS. By Heather A. Wilson. Oxford University
Press: New York, New York. 1988. Pp. 209. $49.95.
INTERNATIONAL NAVIGATION: ROCKS AND SHOALS AHEAD? Edited
by Jon M. Van Dyke, Lewis M. Alexander and Joseph R. Mor-
gan. The Law of the Sea Institute, William S. Richardson School
of Law: Honolulu, Hawaii. 1988. Pp. 435. No price given.
KIME'S INTERNATIONAL LAW DICTIONARY 1988. Edited by James
M. Matthews. Kime's International Law Dictionary Limited:
Carlisle, England. 1988. Pp. 1156. No price given.
PRIVATE MEMBERS' BILLS. By David Marsh and Melvyn Read.
Cambridge University Press: New Rochelle, New York. 1988.
Pp. 208. No price given.
THE LAW OF THE INTERNATIONAL CIVIL SERVICE. By C.F. Amer-
ashinghe. Oxford University Press: New York, New York. 1988.
Pp. 1333. $120.00.
THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN INTER-
NATIONAL LAW. By Omer Yousif Elagab. Oxford University
Press: New York, New York. 1988. Pp. 255. $59.95.
THE RIGHTS OF PEOPLES. Edited by James Crawford. Oxford Uni-
versity Press: New York, New York. 1988. Pp. 236. $55.00.
1
Library: Books Received
Published by CWSL Scholarly Commons, 2015
390 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 19
THE SHATT-AL-ARAB BOUNDARY QUESTION: A LEGAL REAP-
PRAISAL. By Kaiyan Homi Kaikobad. Oxford University Press:
New York, New York. 1988. Pp. 159. $49.95.
2
California Western International Law Journal, Vol. 19, No. 2 [2015], Art. 7
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Books Received

Glick, Martin R.

Escher III, H. Joseph

Personal Choice and Civil Coe Section 1714:45:  An Epilogue for California\u27s Smoking and Health Litigation

Darnell, Alan M.

Nadler, Meryl G.

Important Rulings Emanating from the Cipollone Tobacco Trial

Kim, Chin

North Korean Joint Venture Laws

Bundy, Agnes J.

The Reunification of China with Hong Kong and Its Implications for Taiwan: An Analysis of the  One Country, Two Systems  Model

The thesis of the Article is that there has been, and is, a large unmet need for mental health services in America, and that the mental health care delivery system has been so poorly put together that it is incapable of meeting a major portion of the need for services

Smith, Steven R.

A Crazy System: Mental Health Care Delivery in America

California Western School of Law

Not a member yet

Table of Contents

Blocking Laws and Secrecy Provisions: Do International Negotiations Concerning Insider Trading Provide a Solution to Conflicts in Discovery Rules

The Selection of Mexican Federal Judges

Books in Brief

Books Received

Personal Choice and Civil Coe Section 1714:45: An Epilogue for California\u27s Smoking and Health Litigation

Important Rulings Emanating from the Cipollone Tobacco Trial

North Korean Joint Venture Laws

The Reunification of China with Hong Kong and Its Implications for Taiwan: An Analysis of the One Country, Two Systems Model

A Crazy System: Mental Health Care Delivery in America

2,052

2,208