Digital Commons Network^™

American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn

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The International Court of Justice ("ICJ" or "Court") is the successor to both the Permanent Court of Arbitration and the Permanent Court of International Justice. Before the first court was established in 1899, only ad hoc tribunals existed. This was due to a basic fact of international law that international tribunals possessed jurisdiction only if the parties to the case conferred it on the tribunal either for that case or previously by an international agreement. Therefore, the great problem of international law today is how to confer as much jurisdiction on the international court as possible. Now that the use …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing …

Foreign Policy And Export Controls: How Will The Canada-United States Free Trade Agreement Accommodate The Extraterritorial Application Of The United States Laws To Canadian Exports Of Goods And Technology?, Dorinda G. Dallmeyer

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This paper begins with a comparison of the Canadian and U.S. export control structures. It examines resulting conflicts between the two. It then describes the provisions of the Free Trade Agreement which address the harmonization of export controls. While the Agreement is far-reaching, it is important to note that the FTA is not a Customs Union. That is, the two countries are not going to develop a common external trade policy but will continue to maintain independent trade relations with respect to third countries. In light of that fact, the paper analyzes the prospects for continuing conflict between the United …

Equal Protection Run Amok? An Analysis Of The Nebraska Supreme Court's Decision In The Northern Natural Gas Case, Walter Hellerstein

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In Northern Natural Gas Co. v. State Board of Equalization and Assessment, the Nebraska Supreme Court held that the state could not constitutionally tax the personal property of one taxpayer while exempting the personal property of other taxpayers. Specifically, the court held that pipelines were entitled to an exemption of their personal property because the personal property of railroads and car-lines had been exempted from taxation pursuant to the provisions of the Railroad revitalization and Regulatory Reform Act of 1976 (the 4-R Act), which requires that the railroad and car-line property be taxed in the same way as other commercial …

Binding Contracts In Georgia Local Government Law: Configurations Of Codification, R. Perry Sentell Jr.

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The potential for creating uncertainty looms as a primary and ever-present problem in the codification process. A dominant concern is the fear the unintended statutory changes--or, worse still, the quandary of whether what appears to be such a change was truly intended--may result. The perplexing issues emanating from that quandary can considerably dissipate the benefits of progressive statutory codification. For purely illustrative purposes, attention might be called to the present plight of an historic precept in Georgia local government law. That precept unflinchingly condemns a local governing authority's efforts to commit its successors to a given course of governmental action. …

Rhetoric And Reality In The Law Of Federal Courts: Professor Fallon's Faulty Premise, Michael L. Wells

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Richard Fallon's recent article, "The Ideologies of Federal Courts Law," [74 Va. L. Rev. 1141 (1988)] offers valuable insights into a bewildering body of Supreme Court doctrine. He effectively demonstrates the "substantial doctrinal instability" of this body of law, and also discerns a pattern amid the chaos. Fallon's treatment of the case law and the scholarship is fair-minded, meticulous, and incisive.

I disagree, however, with one aspect of Fallon's thesis. In my view, he falters when identifying sources of the discontinuity in the doctrine. In Part I of his article he argues that the decisions reflect "two sets of incompatible …

Book Review: Law's Empire (1986), Robert D. Brussack

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Book Review of LAW'S EMPIRE by Ronald Dworkin (Cambridge,MA: Balknap Press, 1986).

Conference Introduction, C. Ronald Ellington

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I am pleased to welcome everyone, especially our distinguished speakers, to this most important conference. Our purpose is to discuss ways of maintaining the post-World War II multilateral trading system between the United States and its economic parters, the OECD and the developing world. The Uruguay Round multilateral trade negotiations have given the international community a forum to thoroughly examine the possibility of brining all international trade under a common multilateral trading system, unencumbered by barriers and national interests. The liberalization of trade in services and the protection of industrial and intellectual property rights are an essential part of the …

Administrative Procedure And The Internal Revenue Service: Delimiting The Substantial Understatement Penalty, Peter A. Appel

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In the early 1980's, Congress faced the mounting problems of tax shelters and other forms of tax avoidance. It responded by passing a series of laws.1 One of these provisions, section 6661 of the Internal Revenue Code, penalizes "substantial understatement" of tax liability.2 While section 6661 may appear to be a typical, innocuous tax code provision, close examination reveals that the substantial understatement penalty threatens to expand quietly the power of the Internal Revenue Service (IRS) over taxpayers, violating the spirit of the Administrative Procedure Act (APA) in the process.

Section I of this Note explores the background of section …

The Egalitarian Fallacy, Ann Puckett

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Professor Puckett contends that a policy of treating all law library staff members as equals is an injustice to the professional librarian, dilutes the inherent strength of any library, and impairs library services by requiring professionals to spend valuable time on nonprofessional tasks.

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

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The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …

Competency And Professionalism In Modern Litigation: The Role Of Law Schools, Ronald L. Carlson

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This Article opens with an historical analysis of the forces that stimulated the growth of trial practice training. It then shifts the focus to the current concern of the bar with raising the level of professionalism among lawyers. Part III discusses the role of law schools in helping their students meet both competency and professionalism challenges. To this end, Part III addresses (1) the need of any trial practice course to incorporate litigation ethics in a meaningful way, perhaps within the context of creative and challenging problems materials; and (2) the need for instructors in the field to add quality …

State Taxation Of Federally Deferred Income: The Interstate Dimension, James C. Smith, Walter Hellerstein

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Most states that impose income taxes conform their levies to the federal model. Consequently, when income is realized but not recognized at the federal level-for example, when a taxpayer reinvests the gain from the sale of her former residence in a new residence or when a taxpayer realizes gain from the exchange of like-kind property -- states typically follow the federal rule in deferring recognition of that income. On the assumption that state conformity to the federal nonrecognition rules reflects an implicit endorsement of the policies underlying those rules, state deferral ordinarily raises no issue independent of those raised by …

Uniform Status Of Children Of Assisted Conception Act: A View From The Drafting Committee, Robert C. Robinson, Paul M. Kurtz

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The "Status of Children of Assisted Conception" Act was designed primarily to effect the security and well-being of children born and living in our midst as a result of assisted conception. The Conference's Executive Committee and the general Conference, considering the plight of these children, some with five biological parents, some with no readily identifiable biological parents, and some with other deprivations, determined that the greatest priority and first call on the energy and talent of the Drafting Committee was to provide an act which addressed these and other deficiencies.

There was great urgency on the part of the Drafting …

To Defer Or Not To Defer: A Study Of Federal Circuit Court Deference To District Court Rulings On State Law, Dan T. Coenen

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Federal courts of appeals often grant special deference to district court rulings on matters of state law. This practice is important. It is also ill-conceived. This Article explores this "rule of deference." Section I considers the roots and reach of the rule. Together with the Appendices to this Article, it seeks to detail for practitioners, commentators, and judges the way the rule operates in the courts. The remaining sections of this Article consider the wisdom of the rule of deference. Section II argues that the rule lacks a sound rationale and Section III urges that the rule has bad effects …

State Taxation And The Supreme Court, Walter Hellerstein

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The Supreme Court's outpouring of significant state tax decisions in recent years has elicited little more than a yawn from most constitutional scholars. The nation's preeminent law reviews, which once were filled with articles examining the Court's state tax opinions, pay scant attention to them today. Leading constitutional law casebooks make only passing reference to state taxation. Indeed, the Court itself has expressed ennui over the prospect of adjudicating a seemingly endless stream of state tax controversies. The lack of academic interest in the Court's state tax jurisprudence may be attributable to several factors. Matters of greater cosmic significance -- …

Comments On Why Punitive Damages Don't Deter Corporate Misconduct Effectively, Michael Wells

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Professor Elliott begins his Article by proclaiming that “a fundamental revolution has reshaped the intellectual underpinnings of tort law.”