Law Commons^™

Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand

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When international trade and investment increase, so does the need for satisfactory means of dispute resolution. Dispute resolution in national courts requires that litigants consider not only the likelihood of a favorable judgment but also the ability to collect on that judgment. In cases where the defendant’s assets lie in another jurisdiction, collection is possible only if the second jurisdiction will recognize the first jurisdiction’s judgment.

In the international arena, enforcement of United State judgments overseas is often possible only if the United States court rendering the judgment would enforce a similar decision of the foreign enforcing court. This reciprocity …

The Public Domain, Jessica D. Litman

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This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …

The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner

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Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …

Goldstein's Curse, James J. White

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ON April 16, 1980, a man using the name Marvin Goldstein opened a bank account at a Baltimore branch of Union Trust Company. He deposited $15,000 in cash. He told the branch manager that he planned to establish a Baltimore office of his father's New York business, "Goldstein's Precious Metals and Stones." Goldstein identified himself with a New Jersey driver's license and gave a bank reference from New York. On May 6, Goldstein deposited a check for $880,000 at another Union Trust branch near the branch where he had opened the account. Words on this check indicated that it was …

The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner

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The Uniform Law Commissioners promulgated the Uniform Statutory Rule Against Perpetuities in 1986. The perpetuity-reform efforts of the American Law Institute in the Restatement (Second) inspired the Uniform Act. The Restatement and the Uniform Act employ the so-called wait-and-see approach to perpetuity reform. Wait-and-see is a two-step strategy. Step One preserves the validating side of the common-law Rule Against Perpetuities (the common-law Rule): By satisfying the common-law Rule, a nonvested future interest in property is valid at the moment of its creation. Step Two is a salvage strategy for future interests that would have been invalid at common law: Rather …

At-Will Employment: An Overview, Theodore J. St. Antoine

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The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr.

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The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.

This author's personal approach to legal affairs of this sort is to draw on the laws of biology …

Copyright Legislation And Technological Change, Jessica D. Litman

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Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987)

Should General Utilities Be Reinstated To Provide Partial Integration Of Corporate And Personal Income—Is Half A Loaf Better Than None?, Douglas A. Kahn

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The General Utilities doctrine is the name given to the now largely defunct tax rule that a corporation does not recognize a gain or a loss on making a liquidating or nonliquidating distribution of an appreciated or depreciated asset to its shareholders. The roots of the doctrine, can be traced to a regulation promulgated in 1919 that denied realization of gain or loss to a corporation when making a liquidating distribution of an asset in kind. No regulatory provision existed which specified the extent to which realization would or would not be triggered by a nonliquidating distribution such as a …

Civil Rule 52(A): Rationing And Rationalizing The Resources Of Appellate Review, Edward H. Cooper

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My text is a single and rather simple sentence from Rule 52(a) of the Federal Rules of Civil Procedure: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. My theme is equally simple.. Rule 52(a) serves a vital institutional role in allocating the responsibility and the power of decision between district courts and the courts of appeals. The "dearly erroneous" standard of appellate review established by the Rule is a …

Promise Fulfilled And Principle Betrayed, James J. White

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My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine

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Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …

Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold

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Despite the recent admonition of the Supreme Court that a "request for attorneys' fees should not result in a second major litigation,"12 the courts have been frequently called on to interpret the often ambiguous language of the EAJA. The U.S. Court of Appeals for the Sixth Circuit has not been spared this difficult chore. While the 1985 amendments have clarified some provisions of the Act and affected some major decisions in the Sixth Circuit, the recent changes have also left other previously settled areas in a state of flux. This article will review the Sixth Circuit's EAJA decisions from 1983-1987, …

Copyright, Compromise And Legislative History, Jessica D. Litman

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Copyright law gives authors a "property right." But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the "property" right.' Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts' constructions of an earlier and very different statute on the same subject. 2

Taking From Farm Lenders And Farm Debtors: Chapter 12 Of The Bankruptcy Code, James J. White

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In passing Chapter 12 of the Bankruptcy Reform Act, Congress has effectively invalidated certain important provisions of existing farm mortgages. Equally significant, Congress has disabled farmers from granting binding mortgages on the full, value of their property. Although no court is likely to find the Chapter to violate the fifth amendment, the Chapter constitutes a substantial and retroactive alteration of the rights of existing mortgagees and a restriction on the powers of prospective mortgagors to grant valid mortgages. The thesis of this paper is that Congress was both wrong and shortsighted in its enactment of Chapter 12. Congress was wrong …

Redesigning The Spouse's Forced Share, John H. Langbein, Lawrence W. Waggoner

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American forced-share law underwent a major round of reform in the 1960s. The main objective was to prevent the decedent from engaging in "fraud on the widow's share," that is, using nominal inter vivos transfers to evade the surviving spouse's forced-share entitlement. In jurisdictions that follow the Uniform Probate Code of 1969 (UPC), that mischief has been eradicated. The UPC, which is discussed in some detail below, extends the forced-share entitlement to property that has been the subject of inter vivos transfer. In the present article we develop the view that the time has come for a further round of …

Wait-And-See: The New American Uniform Act On Perpetuities, Lawrence W. Waggoner

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The wait-and-see version of perpetuity reform has gained a new champion in the United States. The National Conference of Commissioners on Uniform State Laws-the body responsible for promulgating uniform legislation, such as the Uniform Commercial Code, for recommended enactment by the federal states-recently approved a Uniform Statutory Rule Against Perpetuities. Shortly thereafter, the Uniform Act was endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers.

Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine

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Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …

The Drafting Process For Cabinet Bills, Daniel H. Foote

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I have undertaken this article in hope that it may be of some help in promoting public understanding of the actual manner of review by the Cabinet Legislation Bureau-one step in the drafting process for legislation introduced by the Cabinet-and of the diligent efforts of the r��presentatives of the various ministries with whom we regularly come into contact. It goes without saying that the views and explanations contained herein, along with any inadequacies or inaccuracies in this account, are solely the responsibility of this author.

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987.)'

The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan

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For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …

The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner

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When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …

The 'Legalization' Of The Family: Toward A Policy Of Supportive Neutrality, David L. Chambers

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The word "legalization" has conflicting meanings. One, intended to sound the theme of this conference, conveys the notion of government regulation permeating some area of human activity. The other-as found, for example, in the phrase "the legalization of marijuana"-is a near opposite: the process of making legal or permissible that which. was previously forbidden, taking government out of that which it had previously controlled. The recent history of government's relationship to the family amply displays both sorts of legalization, both government's intrusion and its withdrawal, and reveals a paradoxical relation between the two-that as government frees people to live their …

The Supreme Court's Misconstruction Of A Procedural Statute-A Critique Of The Court's Decision In Badaracco, Douglas A. Kahn

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When a taxpayer files an honest' federal income tax return for a taxable year, section 6501(a) of the Internal Revenue Code2 limits the period of time during which the Government can assess a tax for that year to a three-year period commencing with the date that the return was filed. The three-year limitations period is extended for an additional three years by section 6501(e)(1)(A) if the taxpayer's return omits properly includible gross income in an amount in excess of twenty-five percent of the gross income that was reported. If a taxpayer fails to file a return for a taxable year …

Federal Regulation Of The Workplace In The Next Half Century, Theodore J. St. Antoine

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Even the general circulation press, from the New York Times to the Los Angeles Times to Business Week, has taken to examining the current malaise of the labor movement and the increased emphasis upon ensuring the safety, health, and economic security of employees through direct governmental regulation rather than through collective bargaining. What accounts for this upsurge of scholarly and popular interest in labor relations and labor law? There are undoubtedly multiple causes but I should like to focus on a couple of reasons that seem preeminent to me.

The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine

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There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.

Timing As Jurisdiction: Federal Civil Appeals In Context, Edward H. Cooper

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The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same …

Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine

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Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from …

Discrimination Bans Demonstrate Approaching Maturity Of Employment Law, Theodore J. St. Antoine

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The pervasive message of this symposium sponsored by the Labor Relations Law Section, whether or not intended by the individual authors, is that American employment law is moving beyond adolescence and may be approaching maturity.