Volume 37 Number 5 -- Summer 2004

TABLE OF CONTENTS

DEVELOPMENTS IN THE LAW: FEDERAL JURISDICTION AND FORUM SELECTION*

I.     Foreword

by Georgene Vairo

II.     Developments in Diversity Jurisdiction

by Amy L. Levinson

III.     Federal Question Jurisdiction

by Brianna J. Fuller

IV.  Supplemental Jurisdiction

by Annette B. Greitzer

V.   Removal and Remand

by Heather R. Barber  

VI.     The Anti-Injunction and All Writs Acts in Complex Litigation

by Joshua J. Wes

VII.     Forum Non Conveniens

by Helen E. Mardirosian

NOTES & COMMENTS

In the Wake of Hurricane Asmus : A Lost Opportunity in our Struggle With Employment Handbooks

by John Giovannone

The handbook exception to employment-at-will gained general acceptance by the early 1980s. Many employers reacted to this development by issuing new handbooks that modified those provisions capable of invoking the exception. In reviewing employer modifications to employee handbooks, courts have applied a myriad of rules on a seemingly ad hoc basis. In 2000, the California Supreme Court, in Asmus v. Pacific Bell, reviewed a question that should have exposed as distinct those handbook provisions that contain express conditions of duration. The author concludes that courts have struggled because they have failed to make this distinction, and asserts that express conditions of duration should be treated as implied promise option contracts. The author argues that modifying express conditions of duration should require additional consideration.

Demore v. Kim : Is the Supreme Court Decreasing the Rights of Lawful Permanent Residents?

by Yoh Nago>

In Demore v. Kim , the Supreme Court upheld an INS detention of a lawful permanent resident ("LPR") pending deportation proceedings, without a bail hearing to determine whether the detention was necessary. This Comment explains how the Court's decision reflects a shift in the protection of LPRs, setting new precedent for further erosion of the constitutional rights of aliens within the United States . Although national security is a critical issue, detaining a resident of the United States who has not yet been found to be deportable without a bail hearing to discern whether the individual is a flight risk or a danger to society is an arbitrary act of government in violation of the due process rights possessed by all residents.

Making a Case for Wealth-Calibrated Punitive Damages

by Leila C. Orr

The debate over how to limit punitive damage awards has a long history. Defendants-especially wealthy corporations-have long argued that juries should not hear evidence of a defendant's wealth in deciding the appropriate punitive damage award. In State Farm Automobile Insurance v. Campbell , the Supreme Court agreed, holding that juries cannot use a defendant's wealth to inflate a punitive award. In a Seventh Circuit opinion, Judge Posner interpreted the decision in State Farm as creating a narrow circumstance where the defendant's wealth would be relevant. In this Note, the author argues that Judge Posner's opinion is consistent both with the history of punitive damages and with the two goals underlying punitive damages: punishment, and deterrence.

"Silence is a Fence Around Wisdom": How Conant v. Walters Broke Down the Fence by Securing Physicians' First Amendment Right to Recommend Medical Marijuana to Their Patients

by Kathy S. Pomerantz

In Conant v. Walters, the Ninth Circuit held that physicians have a First Amendment right to recommend medical marijuana to their seriously ill patients. This Comment analyzes the court's proper application of strict scrutiny to the government's federal drug policy pertaining to recommendations of the drug to determine that the policy is an unconstitutional content-based restriction on speech. This Comment also explores the limitations on physicians' recommendations, recognizing that physicians may not go so far as to aid or abet patients in committing a crime in order to obtain medical marijuana. This Comment concludes that the decision is important because it not only affects the right of physicians to recommend medical marijuana, but it also impacts the right of patients to receive information about the drug.

Why California Shopping Centers Can't Protect Mickey Mouse From Union Handbilling: A Comment on Glendale Associates v. NLRB

by Gena M. Stinnett

In this Comment, the author reviews the Ninth Circuit's decision in Glendale Associates, Ltd. v. NLRB . In Glendale Associates , the Ninth Circuit held that a shopping center could not prevent union handbillers from distributing flyers containing a mall tenant's name to the mall's patrons. The shopping center at issue maintained a rule forbidding distribution of handbills naming its tenants. As part of a labor dispute, Union handbillers distributed flyers at the shopping center that mentioned the Disney Store, a tenant of the shopping center. In response, the shopping center threatened to arrest them. The Ninth Circuit upheld the right of union handbillers to distribute the handbill, relying on First Amendment jurisprudence to determine that the shopping center's rule violated the free speech provisions of the California Constitution. The author presents a compelling argument that while the Ninth Circuit correctly decided the case, the court should have relied on existing California case law, In re Lane , to support its analysis. While the California Supreme Court had not yet addressed the specific type of rule that the mall promulgated, its holding in Lane went to the heart of the issue.

Taking a Step Back: The United States Supreme Court's Ruling in Overton v. Bazzetta

by Marsha M. Yasuda

In Overton v. Bazzetta , the United States Supreme Court found regulations that severely restricted an inmate's visitation rights were constitutional . This Comment analyzes the Court's decision by focusing on the importance of rehabilitation as a theory of punishment and examines the Court's application of the four-factor Turner v. Safley balancing test. This Comment argues that the United States Supreme Court should reevaluate the Turner test so that in determining whether prison regulations are constitutional, all penological interests should be taken in to account, particularly rehabilitation. The Comment concludes that by giving prisons great discretion to point to any legitimate penological interest to justify their regulations, the Court allows prisons to ignore the goal of rehabilitation, a theory of punishment that ultimately benefits both the inmate and the prison.

  * The Developments authors and editors would like to thank Professor Georgene Vairo, for her invaluable guidance and support throughout this project.