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Articles 1 - 30 of 38
Full-Text Articles in Law
Public Trust Protection For Stream Flows And Lake Levels, Ralph W. Johnson
Public Trust Protection For Stream Flows And Lake Levels, Ralph W. Johnson
Articles
The public trust doctrine and the appropriative water rights system are headed on a collision course in the West. Appropriators claim vested property rights to extract water for irrigation, mining, manufacturing and other uses. They further assert that under the appropriation doctrine such extractions can continue in perpetuity regardless of the consequences to navigation, fishery and other public values. The public, however, increasingly insists on more protection for environmental and ecological values, aesthetic quality and recreational opportunities, which on lakes and streams usually means leaving waters in place. As a result, the courts are being asked to apply legal doctrines …
Constitutional Torts, Christina B. Whitman
Constitutional Torts, Christina B. Whitman
Articles
In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …
Accelerated Depreciation Revisited—A Reply To Professor Blum, Douglas A. Kahn
Accelerated Depreciation Revisited—A Reply To Professor Blum, Douglas A. Kahn
Articles
Professor Blum's comment addresses the proper or neutral tax treatment to be accorded three of the items discussed in my recent article on accelerated depreciation - namely, annuities, prepaid expenses, and exhaustible assets. Blum disputes my analysis in all three cases. While Blum's article is eminently readable, I do not believe that it refutes my earlier work to any extent. In this reply to Professor Blum, I will deal separately with each of the three items he examines. First, however, it is useful to consider the meaning of the term "tax neutrality" and to set forth my views as to …
Nondegradation And Visibility Under The Clean Air Act, David P. Currie
Nondegradation And Visibility Under The Clean Air Act, David P. Currie
Articles
No abstract provided.
Guardians Of The Constitution, Gerhard Casper
The Positive Economic Theory Of Tort Law, Richard A. Posner, William M. Landes
The Positive Economic Theory Of Tort Law, Richard A. Posner, William M. Landes
Articles
No abstract provided.
The Present Situation In Legal Scholarship, Richard A. Posner
The Present Situation In Legal Scholarship, Richard A. Posner
Articles
No abstract provided.
Optimal Sentences For White-Collar Criminals, Richard A. Posner
Optimal Sentences For White-Collar Criminals, Richard A. Posner
Articles
Those concerned by the growth of white-collar crime disagree over the choice of a fine or imprisonment as the more appropriate sentence. In this article, Professor Posner argues that a sufficiently large fine is an equally effective deterrent that is cheaper to administer and therefore socially preferable.
Social Investing And The Law Of Trusts, Richard A. Posner, John H. Langbein
Social Investing And The Law Of Trusts, Richard A. Posner, John H. Langbein
Articles
No abstract provided.
The Weber Case: The Judicial Abrogation Of The Antidiscrimination Standard In Employment, Bernard D. Meltzer
The Weber Case: The Judicial Abrogation Of The Antidiscrimination Standard In Employment, Bernard D. Meltzer
Articles
No abstract provided.
Sentencing Reform And Parole Release Guidelines, Albert W. Alschuler
Sentencing Reform And Parole Release Guidelines, Albert W. Alschuler
Articles
Although parole release guidelines have achieved many of the advantages of determinate sentencing, they raise troublesome issues. Subject to important caveats, the author maintains that sentencing guidelines can better be administered by courts than by parole boards. He also maintains that current federal parole guidelines unfairly disregard plea bargained charge reductions, and that the construction of equitable guidelines requires detailed offense-by-offense and situation-by-situation studies that have not yet been undertaken.
Direct Federal Regulation Of Stationary Sources Under The Clean Air Act, David P. Currie
Direct Federal Regulation Of Stationary Sources Under The Clean Air Act, David P. Currie
Articles
No abstract provided.
Market Power In Antitrust Cases, Richard A. Posner, William M. Landes
Market Power In Antitrust Cases, Richard A. Posner, William M. Landes
Articles
With many antitrust prohibitions, the existence of a violation depends upon whether the defendant possesses sufficient market power. In this Article, Professors Landes and Posner present an economic analysis of market power that provides the necessary foundation for application to particular cases and for formulation of antitrust policy. They use their approach to illuminate the perplexing issues of product and geographical market definition, the measurement of market power arising from mergers and within regulated industries, and the quantification of damages in monopolization and price-fixing cases. Finally, they argue that, despite the novelty of their formulation, it is compatible with the …
The Decision To File Federal Criminal Charges: A Quantitative Study Of Prosecutorial Discretion, Richard Frase
The Decision To File Federal Criminal Charges: A Quantitative Study Of Prosecutorial Discretion, Richard Frase
Articles
No abstract provided.
Goldberg's Forgotten Footnote: Is There A Due Process Right To A Hearing Prior To The Termination Of Welfare Benefits When The Only Issue Raised Is A Question Of Law?, Laura J. Cooper
Articles
The federal government, in two different contexts, is currently reexamining the specific procedural protections that should be afforded welfare recipients who seek to challenge decisions of welfare agencies about their benefits. The Carter Administration and Congress are reviewing welfare hearing procedures as part of their interest in a fundamental reform of welfare programs.' Simultaneously, the Department of Health and Human Services (formerly HEW)2 is considering revision of its regulations governing welfare hearings.3 Both reform efforts propose that welfare benefits be discontinued before a hearing decision is rendered for recipients who challenge the termination of their benefits on the ground that …
Administrative Rulemaking And Judicial Review: Some Conceptual Models, Daniel J. Gifford
Administrative Rulemaking And Judicial Review: Some Conceptual Models, Daniel J. Gifford
Articles
A number of observers presently believe that much federal rulemaking has become unduly complex, time-consuming, costly, and unwieldly,1 primarily because of the transformation of judicial review of rules promulgated after informal proce- dures into review on the administrative record. Former dean Carl Auerbach, for example, believes that this change in judi- cial review in the last decade has profoundly and adversely af- fected the rulemaking process on the administrative level.2 Auerbach suggests that requiring an agency to prepare a de- fense to all potential challengers of a proposed rule, regardless of the actual number or content of the challenges, imposes …
Unanimity And Desegregation: Decisionmaking In The Supreme Court, 1948-1958, Dennis J. Hutchinson
Unanimity And Desegregation: Decisionmaking In The Supreme Court, 1948-1958, Dennis J. Hutchinson
Articles
By a process that has been the subject of considerable speculation, the United States Supreme Court reached a unanimous decision in the 1954 cases of Brown v. Board of Education and Bolling v. Sharpe, declaring unconstitutional statutory segregation in public school systems in the states and in the District of Columbia. Using previously unpublished material, Professor Hutchinson traces the rise and fall of unanimity in the segregation cases of the 1950's. The article delineates the Court's internal decisionmaking process and analyzes the role of unanimity in influencing the response of both the Court and the nation to the escalating challenges …
Creditors' Remedies As State Action, Julie Roin
The Ethical And Political Basis Of The Efficiency Norm In Common Law Adjudication, Richard A. Posner
The Ethical And Political Basis Of The Efficiency Norm In Common Law Adjudication, Richard A. Posner
Articles
No abstract provided.
Automobile No-Fault Plans: A Second Look At First Principles, Richard A. Epstein
Automobile No-Fault Plans: A Second Look At First Principles, Richard A. Epstein
Articles
No abstract provided.
Robert G. Dixon: In Memoriam, Philip B. Kurland
Foreword The American Jury, Hans Zeisel
Lawmaking And Public Opinion Research: The President And Patrick Caddell, Hans Zeisel
Lawmaking And Public Opinion Research: The President And Patrick Caddell, Hans Zeisel
Articles
No abstract provided.
The Economics Of Passing On: A Reply To Harris And Sullivan, William M. Landes, Richard A. Posner
The Economics Of Passing On: A Reply To Harris And Sullivan, William M. Landes, Richard A. Posner
Articles
No abstract provided.
Does Rome Have A Lesson For Us?, Hugh D. Spitzer
Does Rome Have A Lesson For Us?, Hugh D. Spitzer
Articles
As the Roman Empire became more complex and centralized, so did its law and legal system. Is there a message here for us?
Criminal Procedure In Alaska, Jeff M. Feldman
Criminal Procedure In Alaska, Jeff M. Feldman
Articles
Two years ago this review published an article which reviewed search and seizure law in Alaska. Because the local barand bench seem to have found that article to be useful, it appeared worthwhile to put together a similar review of the remainder of Alaska's law of criminal procedure. Like its predecessor, this article will review and analyze the law of criminal procedure in Alaska, isolating those areas in which the Alaska Legislature or the Alaska Supreme Court has departed from the prevailing approach to procedure in criminal cases and predicting probable outcomes to procedural issues still unresolved in Alaska.
Solar Access And Property Rights: Reply To A Maverick Analysis, Dale Goble
Solar Access And Property Rights: Reply To A Maverick Analysis, Dale Goble
Articles
No abstract provided.
The Third United Nations Conference On The Law Of The Sea: The Eighth Session (1979), Bernard H. Oxman
The Third United Nations Conference On The Law Of The Sea: The Eighth Session (1979), Bernard H. Oxman
Articles
No abstract provided.
Federalism And Social Change, Terrance Sandalow
Federalism And Social Change, Terrance Sandalow
Articles
A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal …
High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote
High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote
Articles
Today no statute prohibits the mere possession of marijuana or other controlled substances beyond the three-mile offshore territorial limit of the United States; but prosecutions relating to vessels carrying controlled substances outside the territorial waters may be based upon charges of conspiracy to import or distribute the substances. In attempting to halt the recent increase in smuggling of such contraband by sea, the United States Coast Guard and other law enforcement agencies have aggressively exercised their powers to stop and search vessels. Two parallel statutory provisions, 14 U.S.C. § 89(a) and 19 U.S.C. § 158,(a), give the Coast Guard and …