UCLA Law Review Volume 51, Issue 1


Rethinking Assumption of Risk and Sports Spectators

In 2002, the puck-related death of thirteen-year-old Brittanie Cecil at a National Hockey League game spurred calls for improved safety measures in professional sports arenas. However, common law tort principles—under which injured fans’ claims have traditionally failed—are unlikely to provide the impetus for any such change. Under the “baseball rule,” stadium owners owe the “limited duty” of providing screened seats for as many fans as can reasonably be expected to desire them. However, some courts also applied assumption of risk as an affirmative defense without explicitly differentiating between it and the baseball rule. Uncertainty over the extent to which the two doctrines overlap posed a particular problem in jurisdictions in which the abolition of contributory negligence partially overruled the assumption of risk defense. Recently, in Knight v. Jewett, a plurality of the California Supreme Court held that assumption of risk now operates as an entirely duty-based doctrine. Subsequent California appellate courts opine that Knight replaces the limited duty of the baseball rule with a doctrine in which stadium owners owe fans a mere duty not to increase a sport’s inherent risks. In this Comment, David Horton contends that a close examination of Knight and its underlying principles casts doubt on this conclusion. Even though Knight substitutes a duty-based regime for cases previously resolved under the rubric of assumption of risk, its approach is entirely consistent with the application of the duty-based baseball rule to cases of fan injury. To conclude otherwise treats fans and athletes identically, neglecting both the vast difference between their participatory roles, and modern tort law’s penchant for allocating the burden of injury prevention entirely to business entities instead of to consumers. Yet, the baseball rule itself allows stadium owners to discharge their legal obligations by taking a single, anachronistic safety measure, thus creating little incentive to examine new methods of keeping fans safe. Horton concludes that stadium owners should instead owe fans a duty of reasonable care. This standard would force stadium owners to link safety measures to the specific manner in which fans are hurt and to update their precautionary measures as sports and technology evolve. In addition, the doctrine of comparative fault would assign liability in accordance with each party’s blameworthiness, thus ameliorating concern that a duty of reasonable care would greatly increase stadium owners’ liability for fan injuries.

Stating a Title VII Claim for Sexual Orientation Discrimination in the Workplace: The Legal Theories Available After Rene v. MGM Grand Hotel

No federal statute explicitly authorizes victims of workplace sexual orientation discrimination to sue their employers for damages. Nevertheless, many such victims have advanced novel legal theories that analyze sexual orientation discrimination as a kind of sex discrimination, thus bringing sexual orientation discrimination within the protection of Title VII of the Civil Rights Act of 1964. This Comment analyzes some of these legal theories, and discusses in detail the recent case of Rene v. MGM Grand Hotel, in which the Ninth Circuit held that a victim of sexual orientation discrimination adequately had stated a Title VII claim. Ultimately, however, this Comment urges plaintiffs and courts to abandon the legal theories already in use and to adopt in their place a more inclusive theory based on interracial relationship discrimination.

A Brief History of Race and the U.S.-Mexican Border: Tracing the Trajectories of Conquest

The conquest of Mexico between 1846 and 1848 has largely disappeared from public consciousness as a significant historical event with contemporary consequences. Yet this conquest resulted in the annexation by the United States of approximately one-half of former Mexico, constituting most of the current southwestern United States. In this Article, I describe the roles that race and racism played in justifying the conquest, and I explore some of the current consequences of the conquest. One of the defining features of any conquest is the subordination of the conquered. The history of the conquered Mexicans of the Southwest demonstrates this purposeful subordination. Through careful redrafting of the Treaty of Guadalupe Hidalgo, the U.S. Congress reserved to itself discretion over when to admit the conquered territories as states. Congress waited until Mexicans were politically disempowered racial minorities within each territory before admitting the conquered territories as states with political representation. This happened earliest in the cases of Texas (annexed in 1845) and California, and latest in New Mexico, which was denied statehood until 1912. The minimization of the political power of Mexicans as Mexicans emerges, then, as a prominent theme of the conquest. I believe this theme can be generalized to all Latino peoples subject to U.S. conquest. The minimization of the political power of Latinos continues today, in at least three areas. First, nearly four million U.S. citizens resident in Puerto Rico live without voting rights or political representation in the federal government, yet are subject to federal law, violating democratic theory. Second, the intentional, long-term exploitation of undocumented Latino immigrant labor maximizes agricultural profits while minimizing the potential political power of the immigrants. Lastly, attempts to curtail the use of Spanish through Official English laws and other restrictions symbolize the subordination of Spanish speakers and result in less access and use of the democratic process. These are some of the “trajectories of conquest.” The study of this history helps explain why Latino political power always seems less significant than population numbers and demographic projections suggest it should be.

Human Rights and Undocumented Migration Along the Mexican-U.S. Border

The statistics are clear: Between 1990 and 2002, there have been more than 3000 dead and missing unauthorized immigrants and 15,000,000 apprehensions and deportations along the Mexican-U.S. border. The border strategy of U.S. authorities has forced undocumented immigrants to pay higher prices to “coyote guides,” providing enormous financial incentives for smuggling. The immediate effect has been the creation of sophisticated criminal organizations that exploit this business. The worst effect of U.S. border policy, however, is that undocumented immigrants now face a border fraught with dangers of death, serious bodily injury, robbery, swindling, molestation, and other assaults. This is a complex and problematic reality. Therefore, the U.S.-Mexican border is a “danger line” for unauthorized immigrants. In 2002, the U.S. Border Patrol discovered 323 deceased immigrants. American and Mexican researchers, nongovernment organizations, and journalists have declared that the U.S. government is responsible for these deaths. They have also called this tragedy a human rights violation. In this Article, cultural anthropologist Guillermo Alonso Meneses explores the problem of immigrant deaths and analyzes whether there is evidence of human rights violations in the United States’ border strategy or in the passive Mexican authorities’ attitude. This Article argues that the Mexican and U.S. governments have equal responsibility for the problem of immigrant deaths. Human rights violations exist, but these are isolated events. There is no clear evidence to charge Mexican or U.S. authorities with systematic human rights violations. Nevertheless, we need to stop the deaths of unauthorized immigrants through rapid and humane solutions.

Open Borders?

U.S. immigration law is premised on the fundamental idea that it is permissible, desirable, and necessary to restrict immigration into the United States and to treat borders as a barrier to entry rather than a port of entry. In this Article, Kevin Johnson seeks to add to the scholarly dialogue on immigration law by considering the possible reimagination of the meaning and significance of the international border. Specifically, Professor Johnson attempts to articulate arguments for eliminating the border as a legal construct that impedes the movement of people into the United States. In making a case for the consideration of more open borders, this Article calls for the study of a potentially radical change in immigration law. The argument obviously runs counter to the historical restriction of immigration, as well as the wave of border fortification that marked the 1990s and increased dramatically in the wake of the tragic events of September 11, 2001. To this point, politicians, activists, and scholars have not seriously considered opening the borders to all comers; few theorists question the underlying premise that a nation-state has the sovereign power to enact immigration restrictions or that it might exercise that power to admit all persons who seek entry into the country. Similarly, legal scholarship generally treats closed borders as the assumed state of immigration law, with the law facilitating the efficient, fair, and rational administration of a comprehensive system of immigration controls; put differently, legal scholarship ordinarily offers ideas on improving this system, rather than on questioning its foundational premises. Part I of this Article contrasts the views of political theorists on open borders. Part II studies the moral, economic, and policy arguments for open borders, revealing the difficulty in squaring immigration restrictions with the commitment of liberal theory to individual rights. This section further suggests the possible move toward more open borders, with regional integration and more open labor migration akin to that which has evolved in the European Union possibly serving as a step toward broader change.

NAFTA as a Symbol on the Border

The North American Free Trade Agreement (NAFTA) has two faces: the real and the symbolic. Although the “real” NAFTA—tariff-free trade, increased investments, and new mechanisms for cooperation on environmental protection within North America—has been substantially successful, NAFTA as a symbol of disappointed hopes for a better life and fear of globalization continues to resonate in the popular discourse. Because the NAFTA experience is shaping the debate over future trade policy, this Article distinguishes the symbolic NAFTA from the real NAFTA. With respect to environmental conditions along the U.S.-Mexican border, two examples of the importance of this distinction are maquiladora factories in northern Mexico and the recent cross-border development of power stations and other energy facilities. This Article argues that the popular link between NAFTA and border area maquiladoras is based on several faulty beliefs, including that maquiladora growth since NAFTA has been confined to the border area. Rather, maquiladora development and location, and the environmental and social problems associated with rapid industrialization, are manifestations of global processes and Mexican policies that began long before NAFTA. NAFTA provides new mechanisms that have improved some of the worst environmental conditions along the border. Nevertheless, serious maquiladora problems persist and make up part of the symbolic NAFTA. Major responsibility for correcting those problems, however, lies with Mexican national policy and administration; the United States and the maquiladora businesses can contribute to this effort. Intensified energy development in the border area could place additional stress on environmental conditions in the form of air pollution, demand for scarce water supplies, and construction of energy facilities in sensitive coastal areas. The real NAFTA leaves energy subject to many national and local restrictions, and the legal status of electricity trade remains ambiguous. This presents an opportunity for federal, state, and local governments to capitalize on NAFTA as a positive symbol of closer economic integration and political cooperation in order to develop comprehensive transboundary energy planning and regulation for the region. The North American Commission for Environmental Cooperation, a NAFTA institution, has pointed the way with an important study of cross-border transfers of electricity under NAFTA. The governments of all three NAFTA countries need to work in closer partnership to overcome the problems contributing to NAFTA’s negative symbolic power and to realize the benefits of NAFTA as a positive symbol of our shared continental enterprise.

The Rule of Law: Mexico's Approach to Expropriation Disputes in the Face of Investment Globalization

A new constitutional design is emerging in Mexico to address investment and expropriation disputes. Assurance of the rule of law, understood as independent legal process to resolve disputes, is a key element. Although the rule of law assumed growing importance as Mexico’s historical expropriations progressed, questions persisted as to its effective application. Mexico’s opening to global competition for investment in the 1990s demanded a greater basis for trust in such application. Mexico accordingly provided by treaty to defer investment and expropriation disputes with treaty country investors to binding international arbitration. To address rule of law concerns more broadly, Mexico reformed its Constitution in 1994 to increase its federal judiciary’s independence. More recently, federal judicial review has benefited from the Mexican Constitution’s increased rigidity consequent to the fading of single party rule. Recent cases, including the resolution of the Metalclad international arbitration, the Supreme Court’s declaration of the constitutional position of treaties relative to legislation, and the Court’s resolution of a constitutional dispute between Congress and the President with implications for private investment in the electricity sector, delineate the emerging design and associated, innovative judicial doctrine.

Borderline Decisions: Hoffman Plastic Compounds, the New Bracero Program, and the Supreme Court's Role in Making Federal Labor Policy

In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that an undocumented immigrant who has been fired in retaliation for exercising his right to engage in union organizing activity must nevertheless be denied the remedy of backpay. The majority reasoned that awarding backpay to vindicate the National Labor Relations Act (NLRA) would run afoul of conflicting provisions of the Immigration Reform and Control Act, which forbids the hiring of undocumented workers. Dean Cameron argues that Hoffman is the most recent manifestation of a decades-long process by which the Court has been elevated from an interpreter to a maker of federal labor policy. Since 1959, Congress has enacted practically no substantive reforms of the NLRA. But the Supreme Court has. Its vehicle of choice has been the “borderline” case, in which the majority erects a false conflict at the margins, separating the NLRA from some other federal law, then resolves the conflict by effectively abrogating the NLRA. In making federal labor policy, the Court’s majority now favors four types of choices, none of which Congress would necessarily favor: judicial activism, isolationism from international labor law, protectionism of employers who violate the NLRA, and anarchism. In describing these choices, Dean Cameron pays special attention to judicial activism, which has effectively revived, and expanded, the old Bracero Program, a long-discredited series of laws and treaties under which the United States imported Mexican workers to work in the agricultural industry as indentured servants.