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1989

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Full-Text Articles in Law

Water Pollution And The Public Trust Doctrine, Ralph W. Johnson Apr 1989

Water Pollution And The Public Trust Doctrine, Ralph W. Johnson

Articles

Nonpoint pollution from irrigation return flows has become a serious national problem. Even the extraction of water for irrigation and other purposes causes pollution by reducing the assimilative capacity of the source stream or lake. Such pollution can be regulated either by the courts or the legislatures under the public trust doctrine, which antedates the prior appropriation system, and which protects fisheries and water quality. Alternatively, this pollution can be controlled under the state's police powers. The "takings" issue should not be troublesome because no one, not even prior appropriators, has or can acquire a legal right to pollute ...


The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr. Jan 1989

The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr.

Articles

In this world of strategies and counterstrategies, the advantages of the good fake are not to be overlooked. Fakery is an indelible part of the landscape in settings where we readily accept the gaming metaphor—sporting events are the obvious examples. But I wish to emphasize how fakery and deception can play an important role in legal interactions as well, particularly in the writing of the environmental statutes. Environmental lawyers often are fond of borrowing examples from natural history to illustrate propositions of law. There is more to this practice than habit, it seems to me, because the natural laws ...


The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr. Jan 1989

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

Articles

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 ...


"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper Jan 1989

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

Articles

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of ...


Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper Jan 1989

Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper

Articles

This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict ...


Statutory Damage Caps Are An Incomplete Reform: A Proposal For Attorney Fee Shifting In Tort Actions, Gregory A. Hicks Jan 1989

Statutory Damage Caps Are An Incomplete Reform: A Proposal For Attorney Fee Shifting In Tort Actions, Gregory A. Hicks

Articles

The premise of this article is that the currently unsettled status of noneconomic damage awards offers an opportunity to reexamine the function of such awards, and to move tort law in the direction of more stable and rational remedies, something that could not be achieved either under recently adopted damage cap statutes or through the reinstatement of unrestricted compensation of noneconomic losses.

This article has two parts. In the first part, the ambiguous role of noneconomic damages, that is, their function as makeweight compensation for noncompensable litigation expenses and as compensation for real intangible injuries, is described. This ambiguity has ...


Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules?, Thomas R. Andrews Jan 1989

Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules?, Thomas R. Andrews

Articles

For at least sixty years nonlawyers have been prohibited from offering their nonlegal talents in a business combination with lawyers practicing law. Moreover, when the ABA's new model rules were adopted in 1983, the ABA considered carefully but rejected a proposal that would have lifted the traditional ban on nonlawyer ownership of a law business. Nonetheless, the point of each article was that the relevant restrictions in the ethical rules are on their way out.

Commentators have given considerable attention to the unauthorized practice of law by nonlawyers, and to the offering of legal services by nonprofit institutions. The ...


Toward An Auction Market For Corporate Control And The Demise Of The Business Judgment Rule, Mark J. Loewenstein Jan 1989

Toward An Auction Market For Corporate Control And The Demise Of The Business Judgment Rule, Mark J. Loewenstein

Articles

No abstract provided.


The Right To Counsel In Juvenile Court: An Empirical Study Of When Lawyers Appear And The Difference They Make, Barry C. Feld Jan 1989

The Right To Counsel In Juvenile Court: An Empirical Study Of When Lawyers Appear And The Difference They Make, Barry C. Feld

Articles

No abstract provided.


The Fortieth Session Of The U.N. Sub-Commission On Prevention Of Discrimination And Protection Of Minorities, Katherine Brennan, Reed Brody, David Weissbrodt Jan 1989

The Fortieth Session Of The U.N. Sub-Commission On Prevention Of Discrimination And Protection Of Minorities, Katherine Brennan, Reed Brody, David Weissbrodt

Articles

No abstract provided.


Major Developments At The 1989 Session Of The Un Commission On Human Rights, Reed Brody, David Weissbrodt Jan 1989

Major Developments At The 1989 Session Of The Un Commission On Human Rights, Reed Brody, David Weissbrodt

Articles

On 10 March 1989 the United Nations Commission on Human Rights concluded its six week session in Geneva with a number of significant decisions as to country situations in which human rights violations have occurred, including the establishment of a Special Rapporteur on Romania. The Commission also continued monitoring disappearances, torture, executions, religious intolerance, and mercenaries; approved a draft Convention on the Rights of the Child after nine years of discussion; promptly transmitted to the General Assembly a draft Second Optional Protocol to the International Covenant on Civil and Political Rights for the abolition of the death penalty; reaffirmed the ...


Bad Law Makes Hard Cases: Reflections On Teen-Aged Axe-Murderers, Judicial Activism, And Legislative Default, Barry C. Feld Jan 1989

Bad Law Makes Hard Cases: Reflections On Teen-Aged Axe-Murderers, Judicial Activism, And Legislative Default, Barry C. Feld

Articles

Waiver legislation in Minnesota, as in most other States, typically requires juvenile court judges to make individualized determinations as to a juvenile's amenability to treatment and danger to society as the basis for deciding whether to transfer the juvenile to adult court for disposition. Disposition in adult court allows for a more severe sanction than that permitted under the maximum sentence that can be dispensed in juvenile court. The difficulty and disparity in applying this waiver law lies in the discretion given to juvenile justice judges and the diverse criteria applied in judicial decisionmaking, both in the juvenile court ...


The High Seas And The International Seabed Area, Bernard H. Oxman Jan 1989

The High Seas And The International Seabed Area, Bernard H. Oxman

Articles

No abstract provided.


Corporate Debt Relationships: Legal Theory In A Time Of Restructuring, William Wilson Bratton Jan 1989

Corporate Debt Relationships: Legal Theory In A Time Of Restructuring, William Wilson Bratton

Articles

No abstract provided.


The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby Jan 1989

The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby

Articles

No abstract provided.


The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby Jan 1989

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

Articles

No abstract provided.


The New Economic Theory Of The Firm: Critical Perspectives From History, William Wilson Bratton Jan 1989

The New Economic Theory Of The Firm: Critical Perspectives From History, William Wilson Bratton

Articles

No abstract provided.


Agency And Partnership: A Study Of Breach Of Promise Plaintiffs, Mary I. Coombs Jan 1989

Agency And Partnership: A Study Of Breach Of Promise Plaintiffs, Mary I. Coombs

Articles

No abstract provided.


Drafting Wagner's Act: Leon Keyserling And The Precommittee Drafts Of The Labor Disputes Act And The National Labor Relations Act, Kenneth M. Casebeer Jan 1989

Drafting Wagner's Act: Leon Keyserling And The Precommittee Drafts Of The Labor Disputes Act And The National Labor Relations Act, Kenneth M. Casebeer

Articles

This Article analyzes the development of the National Labor Relations Act through the drafts of the original Act. The author traces the evolution of Senator Wagner's ideas through numerous policy and political battles to the passage of the NLRA in 1935. The author explores the development of the drafts and the historical context surrounding their creation to reveal the social theory of the drafters and illuminate previously unexplored undercurrents in the text of the Act itself. The author, through this novel approach to the NLRA, sets up a new way to view the 1935 Act, and evaluates subsequent amendments ...


Work On A Labor Theory Of Meaning, Kenneth M. Casebeer Jan 1989

Work On A Labor Theory Of Meaning, Kenneth M. Casebeer

Articles

No abstract provided.


Groundwater Quality Protection: Setting A National Goal For State And Federal Programs, David H. Getches Jan 1989

Groundwater Quality Protection: Setting A National Goal For State And Federal Programs, David H. Getches

Articles

No abstract provided.


Integrating Thoughtways: Re-Opening Of The Environmental Mind?, Lakshman Guruswamy Jan 1989

Integrating Thoughtways: Re-Opening Of The Environmental Mind?, Lakshman Guruswamy

Articles

The implementation of environmental law and policy has assumed that pollution could be contained, corralled and interdicted within the medium (air, land, or water) in which unpleasant effects are encountered. Sweeping, but piecemeal, federal legislation in the 1970s aspired to create healthy air, together with fishable, swimmable and drinkable waters. Despite impressive gains, these goals have not been achieved. There have been painful failures, compounded by the mounting costs of environmental protection. While the need for environmental protection is generally accepted, the effectiveness and efficiency of regulation based on the legislation of the 1970s has been questioned in the 1980s ...


Congressional Diversions: Legislative Responses To The Estate Valuation Freeze, Wayne M. Gazur Jan 1989

Congressional Diversions: Legislative Responses To The Estate Valuation Freeze, Wayne M. Gazur

Articles

No abstract provided.


Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby Jan 1989

Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby

Articles

No abstract provided.


The Crisis Of Private Law Is Not An Ideal Situation, Kenneth M. Casebeer Jan 1989

The Crisis Of Private Law Is Not An Ideal Situation, Kenneth M. Casebeer

Articles

No abstract provided.


Presidential Management Of Agency Rulemaking, Harold H. Bruff Jan 1989

Presidential Management Of Agency Rulemaking, Harold H. Bruff

Articles

No abstract provided.


Forgetting The Constitution, Robert F. Nagel Jan 1989

Forgetting The Constitution, Robert F. Nagel

Articles

No abstract provided.


General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng Jan 1989

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

Articles

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


Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black Jan 1989

Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black

Articles

As Solicitor General of the United States, Charles Fried, like any good advocate, was often in the position of attempting to generate broad holdings from relatively narrow and particularistic Supreme Court decisions. This was especially true in affirmative action cases. There, the Department of Justice argued that cautious precedents actually stood for the broad proposition that measures designed to put members of disadvantaged groups on a plane of equality should, for constitutional purposes, be treated the same as measures intended to stigmatize or subordinate them. The Supreme Court, however, has consistently rejected this reading of its precedents and the broad ...


Legal Affinities, Joseph Vining Jan 1989

Legal Affinities, Joseph Vining

Articles

Not long ago, any question of the kind "How may theology serve as a resource in understanding law?" would have been hardly conceivable among lawyers. When Lon Fuller brought out his first book in 1940, The Law in Quest of Itself, he could think of no better way of tagging his adversary the legal positivist than to note a "parallel between theoretical theology and analytical jurisprudence." Two decades later, in the name of realism, Thurman Arnold dismissed Henry Hart's non-positivist jurisprudence in harsh terms. A master of the cutting phrase, he confidently entitled his attack "Professor Hart's Theology ...