Law Commons^™

Notes On Misc Re Contract - 1981, Wendy J. Gordon

Scholarship Chronologically

Once there is a patent, voluntarily-accepted user restrictions may not be enforceable. Or, at least, an attempt on the patentee's part to condition access of certain types on obtaining such restrictions, may be impossible. See 30 BNA PTCJ 104 (5/30/85)(Restrictions voided on availability of deposited yeast strains.) Filed under Yeast case.

Union Waiver Of Employee Rights Under The National Labor Relations Act, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.

The Right To Privacy In Nineteenth Century America, David J. Seipp

Faculty Scholarship

On December 15, 189o, Samuel D. Warren and Louis D. Brandeis, two young Boston law partners, published an article in the Harvard Law Review entitled The Right to Privacy. In that article, they proposed a remedy for invasions of personal privacy by the press. More than ninety years later, protection of privacy has become a major concern of the law. Legal scholars have organized the extensive body of case law into a coherent common law of privacy; the Supreme Court has enshrined the right to privacy in the "penumbra" of the Bill of Rights; and Congress has enacted additional safeguards.

In Order To Have Water: Legal, Economic And Institutional Barriers To Water Reuse In Northern New England, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

The maintenance of adequate water supplies to meet increasing demand upon residential and industrial users in New England is now an urgent concern. Encouragement of water reuse is one of the ways in which water conservation can be implemented. This Article, synthesized by the authors from their technical report, examines current legal and institutional methods of promoting water reuse and conservation. They analyze their effectiveness and argue that legal and political reform is needed to achieve the ends of water conservation. I

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …

Union Waiver Of Nlra Rights: Part 2-- A Fresh Approach To Board Deferral To Arbitration, Michael C. Harper

Faculty Scholarship

The author applies the non-waiverprinciple developed in Part I of this article to Board deferral to arbitration. Former Chairman Murphy's concurring opinion in General American Transportation Corp. is evaluated in light of the non- waiver princple. The author analyzes the issues not properly resolved in that opinion, while demonstrating its basic insight.

In Part 1 of this essay, I explored the implications of the Supreme Court's holding in NLRP v. Magnavox Co. that exclusive bargaining agents do not have the authority to waive certain rights protected by section 7 of the National Labor Relations Act. Drawing on Magnavox, …

Tax Characterization Of International Leases: The Contours Of Ownership, William W. Park

Faculty Scholarship

Pondering the human tendency to pay dearly for short-lived adornments, Shakespeare asks a question of interest to lawyers as well as poets: "Why so large cost, having so short a lease.. .? The lawyer's analysis of the issue might begin with a scenario set in an imaginary world in which the tax effects of business transactions are determined by their legal form rather than their economic substance. In such a world, each of two companies decides to build a new factory. One acquires the land outright, paying in several installments. The other enters into a shortterm lease at a very …

Report On The National Commission: Good As Gold, George J. Annas

Faculty Scholarship

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research ended its work by substantially endorsing the status quo which places primary reliance on local Institutional Review Boards for subject protection. This was predictable because of the Commission's researcher-dominated composition which permitted it to assume that (1) research is good; (2) experimentation is almost never harmful to subjects; and (3) researcher-dominated IRBs can adequately protect the Interests of human subjects. The successor Presidential Commission can learn much by reexamining these premises.

The Case For Medical Licensure, George J. Annas

Faculty Scholarship

Locke et al. argue elsewhere in this issue that medical licensure should be abolished. Their reasoning is direct and seductive - but their free market cure is worse than the disease they describe. Their major premise, for example, is simply wrong: "Any governmental action that violates individual rights is improper." For this notion they cite the ultraconservative novelist Ayn Rand who talks about things that are "right" for humans to do. But there are two confusions: (I) rights do not exist in a vacuum; in an interdependent society the rights of individuals must sometimes be balanced against the rights of …

Review Of Human Rights, Pnina Lahav

Faculty Scholarship

This small volume, mostly of essays presented at the World Congress of the International Association for Philosophy of Law and Social Philosophy held in Australia in 1977, addresses a random sample of the many faces of human rights.

Artists, Art Collectors And Income Tax, Alan L. Feld

Faculty Scholarship

The federal income tax law treats artists and art collectors differently. Similar transactions concerning artworks produce disparate income tax results, depending on whether they involve the artist or the collector. On balance, these results seem to favor the collector over the artist. But notwithstanding the dismay of some artists and their advocates, the differences in result flow, in the main, from the differences in the source of the taxpayer's investment in the work.

The collector buys the work with after-tax income. Any gain is properly treated as an investment return and is eligible for capital gain benefits.' The collector, however, …

How To Make The Massachusetts Patients' Bill Of Rights Work, George J. Annas

Faculty Scholarship

The movement for enhanced patients' rights is based on two premises: (I) citizens possess certain rights that are not automatically forfeited by entering into a relationship with a physician or health care facility; and (2) most physicians and health care facilities fail to recognize these rights, fall to provide for their protection or assertion, and limit their exercise without recourse.

The primary argument against patients' rights is that patients have "needs" and defining these needs in terms of rights leads to the creation of an unhealthy adversary relationship.' It is not, however, the creation of rights, but the disregard of …

Lecture Draft On Sensory Recall Device - 1980, Wendy J. Gordon

Scholarship Chronologically

Perception is a bodily function. The brain “sees” according to the orders which the optic nerve relays from its position at the back of the eye. Similarly, it is the brain which also "hears." As we know from our dreaming and our remembering, neither eye nor ear is indispensable to having the sensations of seeing and hearing.

Fathers Anonymous: Beyond The Best Interests Of The Sperm Donor, George J. Annas

Faculty Scholarship

Alex Haley concludes his international best seller, Roots, with the burial of his father in Little Rock, Arkansas. Walking away from the graveside he ponders the past generations, observing "I feel that they do watch and guide." The book inspired whole industries devoted to the development of family trees, and locating one's "roots" has become somewhat of an obsession with many. Because of the current secrecy surrounding the practice of Artificial Insemination Donor (AID), there are an estimated 250,000 children conceived by AID (at the rate of 6-10,000 annually in the United States) who will never be able to find …

"Judicial Supervision Of Transnational Commercial Arbitration: The English Arbitration Act Of 1979, William W. Park

Faculty Scholarship

Present day interaction between court and arbitrator is reminiscent of the seventeenth century struggle between court and crown, in which King James I claimed that his representatives should have the right to adjudicate disputes according to "natural reason," not according to the "artificial ... judgment of the law." The Lord Chief Justice, Edward Coke, resisted this arrogation of power using words attributed to Bracton: "quod Rex non debet esse sub homine, sed sub Deo et lege." Although under no man, the King was subject to God and the law. The extent to which the modern commercial arbitrator should likewise be …

The Care Of Private Patients In Teaching Hospitals: Legal Implications, George J. Annas

Faculty Scholarship

In Herman Melville's novel Moby Dick Ishmael searches for knowledge in diverse ways; he views the world not only through his senses but symbolically and metaphorically. At one point, he is tied to the pagan harpooner Queequeg by a "monkey-rope," and it is his duty to use this rope to pull Queequeg free from the sharks surrounding the dead whale that Queequeg is butchering when Queequeg slips from his perch atop the whale. Should he fail, Queequeg's weight will pull them both into the shark-filled waters. Ishmael ponders: "I seemed distinctly to perceive that my own individuality was now merged …

An Inadequate Basis For Health, Safety, And Environmental Regulatory Decisionmaking, Michael S. Baram

Faculty Scholarship

The use of cost-benefit analysis in agency decisionmaking has been hailed as the cure for numerous dissatisfactions with governmental regulation. Using this form of economic analysis arguably promotes rational decisionmaking and prevents health, safety, and environmental regulations from having inflationary and other adverse economic impacts. Closer analysis, however, reveals that the cost-benefit approach to regulatory decisionmaking suffers from major methodological limitations and institutional abuses. In practice, regulatory uses of cost-benefit analysis stifle and obstruct the achievement of legislated health, safety, and environmental goals.

This Article critically reviews the methodological limitations of cost-benefit analysis, current agency uses of cost-benefit analysis under …

The Art Of Comparative Constitutional Law, Pnina Lahav

Faculty Scholarship

Until recently, German constitutional material has been generally inaccessible to the English speaking audience. Professor Kommers' scholarly contributions, particularly his book, Judicial Politics in West Germany. A Study of the Federal Constitutional Court,¹ have considerably amplified our knowledge in this area. His Article, The Jurisprudence of Free Speech in the United States and the Federal Republic of Germany² provides additional insights into and fresh perspectives on German constitutional law. His Article might be of yet more value, however, if it demonstrated keener sensitivity to comparative constitutional law methodology and deeper analysis of the various substantive matters with …

Managing Risks To Health, Safety And Environment By The Use Of Alternatives To Regulation, Michael S. Baram, David Sandberg, Larry Dufault, Kevin Mcallister

Faculty Scholarship

The management of risks to health, safety and environment is one of the central concerns of our society. This important function has been largely delegated to federal regulatory agencies which, over the last decade, have tried to respond to the difficult mandate of managing risk under conditions of technical uncertainty by implementing complex regulatory programs. The federal government is now grappling with the design and implementation of various regulatory reforms to lessen economic burdens and to harmonize regulation with marketplace considerations, because of growing opposition to further regulation.

What has been left unpromoted as a reform thus far is the …

Negligent Samaritans Are No Good, George J. Annas

Faculty Scholarship

In the lead article attorney Miles Zaremski argues that ambiguities in good samaritan statutes have made them ineffective, and suggests that they be appropriately amended and clarified. This is one possible approach. However, after almost two decades of experimenting with this type of immunity legislation, an experiment which Zaremski seems to indicate has failed, it is worth considering at least two other alternatives: (I) repeal all good samaritan statutes; or (2) amend them to require health care professionals to stop and render emergency aid (the stated goal of good samaritan statutes).

Fiscal Jurisdiction And Accrual Basis Taxation: Lifting The Corporate Veil To Tax Foreign Company Profits, William W. Park

Faculty Scholarship

"No rules of international law exist to limit the extent of any country's tax jurisdiction." Although not yet locus classicus, this assertion summarizes a view that finds favor among academic and practicing lawyers. Even if it is admitted that a relevant nexus must exist between the taxing sovereign and the person, property, or income to be taxed, the competing jurisdictional claims of other states are seldom viewed as imposing limits on national competence. This Article will examine the conflicts among rival assertions of fiscal jurisdiction that result from attempts of capital-exporting states to tax the undistributed income of foreign companies.

An Assessment Of The Use Of Cost-Benefit Analysis In Regulatory Agency Decision Making, Michael S. Baram

Faculty Scholarship

CONSIDERABLE dissatisfaction has been expressed with the process and results of regulatory agency decision making. Recommendations have been made that the Federal agencies employ rational, "balancing" approaches such as cost-benefit analysis in conducting their standard setting and adjudicatory functions.

This paper examines some current uses of cost-benefit analysis by several agencies in their decision-making processes, and identifies and discusses apparent limitations.

Confessions Of A Horizontalist: A Dialogue On The First Amendment, Larry Yackle

Faculty Scholarship

It is hardly surprising that the Supreme Court has never developed a satisfying theory of the first amendment. Free speech and press problems are many and varied, demanding the most delicate balance of interests in order to preserve a system of freedom of expression and at the same time afford proper respect for competing governmental objectives. Doctrine adapted to one medium of expression may not sit well when applied to others. With the passage of time, changes in technology, economic conditions, and the very nature of expression tend to outstrip the Court's ability to keep pace with doctrinal innovations. There …

Reconciling Quinlan And Saikewicz: Decision Making For The Terminally Ill Incompetent, George J. Annas

Faculty Scholarship

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals-sometimes with the assistance of the patient's family-on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial …

Families With Service Needs: The Newest Euphemism, Stanley Z. Fisher

Faculty Scholarship

Juvenile court jurisdiction over "status offenders" - juveniles engaging in noncriminal misconduct such as truancy, running away, and "incorrigibility" - has become the subject of national debate. Most participants in the many-sided discussion agree that the system needs reform. The major disagreement, however, is between those who wish merely to reform the court's jurisdiction over this conduct, and those who would substantially eliminate it. This article concerns the newest reform proposal: to revise status offense jurisdiction under a new category entitled "Families With Service Needs" (FWSN). Proposed in 1977 by a federally funded task force, 5 the FWSN concept has …

Insider Transactions Under The 1940 Act, Tamar Frankel

Faculty Scholarship

No abstract provided.

Special Report On Endangered Species And New Life Forms: Conversation With A Cockroach, George J. Annas

Faculty Scholarship

On June 15, 1978, the United States Supreme Court ruled that the Endangered Species Act of 1973 required the enjoining of the operation of a virtually completed dam, the Tellico Dam in Tennessee, because of a determination by the Secretary of the Interior that its operation would eradicate the snail darter, an endangered species.

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance - Part Ii, Pnina Lahav

Faculty Scholarship

In the beginning, use of the Press Ordinance (hereafter Pr. Ord.) was limited, but as British political control deteriorated it became more extensive and even ruthless. In 1937, the Peel Report complained that the Pr. Ord. was not tough enough and recommended stricter measures.³ At about the same time, the Mandatory Government itself reached the conclusion that the Pr. Ord. was insufficient and issued a series of Defence (Emergency) Regulations which suspended the entire range of civil liberties-including freedom of expression. These Defence (Emergency) Regulations which related to the press replaced in part and fortified in part the Pr. …

Where Are The Health Lawyers When We Need Them, George J. Annas

Faculty Scholarship

A momentous event in the field of health law occurred in April of 1978: the first national meeting of teachers of health law was held at Boston University. Of sixty individuals invited, almost all of whom teach health law as a full-time profession in various graduate schools, forty-five participated in the two-day workshop. While that response alone may have revealed the answer, the first topic on the agenda was: "Is health law a discipline?"

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance -Part I, Pnina Lahav

Faculty Scholarship

This article is part of a broader effort to analyse the relationship between the press and the legal system in Israel. Being only a segment of a larger project, it is devoted in its entirely to one component of Israel's press law: the Press Ordinance of 1933 (hereafter Pr. Ord.). Although antiquated and considered by certain circles as merely a "dead letter", the Pr. Ord. still forms the backbone of Israel's press law, since it regulates so many aspects of the press. Beyond its relevance as positive law, the Pr. Ord. is of interest for a number of reasons. Having …