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Full-Text Articles in Law

Constitutional Law As Moral Philosophy, Gerard E. Lynch Jan 1984

Constitutional Law As Moral Philosophy, Gerard E. Lynch

Faculty Scholarship

The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or ...


Marbury And The Administrative State, Henry Paul Monaghan Jan 1983

Marbury And The Administrative State, Henry Paul Monaghan

Faculty Scholarship

Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two ...


The Survival Of The Derivative Suit: An Evaluation And A Proposal For Legislative Reform, John C. Coffee Jr., Donald E. Schwartz Jan 1981

The Survival Of The Derivative Suit: An Evaluation And A Proposal For Legislative Reform, John C. Coffee Jr., Donald E. Schwartz

Faculty Scholarship

The shareholder derivative suit today faces extinction. Long considered the "chief regulator of corporate management," and a recognized form of litigation in American courts at least since 1855, it now confronts the second great challenge of its history. Thirty-odd years ago, commentators foresaw the derivative suit's demise when state legislatures began adopting security-for-expenses statutes to curb the abuses of "strike suit" litigation. These reports of its death proved exaggerated, however, as plaintiffs discovered various tactics by which to outflank these statutes. As a result, by the late 1960's, the crisis was past, and a revival in the action ...


In Fond Appreciation, Michael I. Sovern Jan 1981

In Fond Appreciation, Michael I. Sovern

Faculty Scholarship

I write in a representative capacity – not for all the presidents of Columbia University, nor even for all the past deans of our great Law School; I presume rather to offer a few words of fond appreciation on behalf of the thousands of middle-aged lawyers who once sat at Willis Reese's feet. My class began the 1952-53 academic year and our legal education with Dean Young Berryman Smith as our Torts professor. A few years later, classes would begin to be sectioned, but in those primeval days, we were one big, happy group. Two hundred and forty strong (not ...


Democracy And Distrust: A Theory Of Judicial Review, Gerard E. Lynch Jan 1980

Democracy And Distrust: A Theory Of Judicial Review, Gerard E. Lynch

Faculty Scholarship

John Hart Ely's Democracy and Distrust is an ambitious attempt to create a new theory of judicial review, breaking away from both "interpretivism" and "noninterpretivism" – a division Professor Ely regards as a "false dichotomy" (p. vii). The book is brilliant and provocative, so much so that one fears less that its faults will be obscured – there is little danger that polemic critics will fail to pounce on them – than that the flash of Professor Ely's reasoning and the controversy it generates will distract us from the genuine importance of the insight that powers his analysis.


Disqualifications Of Decisional Officials In Rulemaking, Peter L. Strauss Jan 1980

Disqualifications Of Decisional Officials In Rulemaking, Peter L. Strauss

Faculty Scholarship

What constraints on impartiality govern agency officials responsible for decisions in proceedings other than on-the-record adjudications? The past few years have witnessed the emergence of a striking body of professional debate, statute, and case law concerning ethics in government and the control of "special interest" influence on governmental decisions. Higher standards for conflict of interest, expanded constraints on ex parte communications, and enlarged concems about separation of functions within the agencies are parts of this development. Another strand, tangled with the others yet doctrinally distinct, concerns the disqualification of responsible government officials for their prior contacts with or expressions of ...


To Herbert Wechsler With Grateful Appreciation, Michael I. Sovern Jan 1978

To Herbert Wechsler With Grateful Appreciation, Michael I. Sovern

Faculty Scholarship

Though the invitation to join this symposium came to me in my official capacity, I prefer to write in personal terms. I make that choice for two reasons. First, I cannot improve on the Faculty's own affectionate resolution of appreciation, and so I am happy to embrace it as the School's official position. (I alone on the Faculty could not vote for it: only a tie gives me the franchise and, try as I might, I could not suborn any contrary votes.) Second, my feelings for Herb Wechsler owe far more to my days as his student and ...


Liquidated Damages, Penalties And The Just Compensation Principle: Some Notes On An Enforcement Model And A Theory Of Efficient Breach, Charles J. Goetz, Robert E. Scott Jan 1977

Liquidated Damages, Penalties And The Just Compensation Principle: Some Notes On An Enforcement Model And A Theory Of Efficient Breach, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

For more than five centuries, strict judicial scrutiny has been applied to contractual provisions which specify an agreed amount of damages upon breach of a base obligation. Although the standards determining the enforceability of liquidated damage clauses have developed novel and labyrinthine permutations, their motivating principle has remained essentially immutable. For an executory agreement fixing damages in case of breach to be enforceable, it must constitute a reasonable forecast of the provable injury resulting from breach; otherwise, the clause will be unenforceable as a penalty and the non-breaching party will be limited to conventional damage measures.

The historical genesis of ...


Integrating Governmental And Officer Tort Liability, George A. Bermann Jan 1977

Integrating Governmental And Officer Tort Liability, George A. Bermann

Faculty Scholarship

The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in ...


Walter Gellhorn, Michael I. Sovern Jan 1975

Walter Gellhorn, Michael I. Sovern

Faculty Scholarship

Walter Gellhorn is irreplaceable. To be sure, in every generation there will be a few scholars who are his peer. In a strong teaching faculty like Columbia's, there will always be some who teach as well as he. The republic is occasionally blessed with public servants who give themselves with the sort of selfless devotion that Walter Gellhorn brings to every task. Each of us can count on a handful of good friends like him for moral support, good advice and uncritical love. But I know of no one who has served an institution so loyally and so effectively ...


Beyond The Best Interests Of The Child, Joanna B. Strauss, Peter Strauss Jan 1974

Beyond The Best Interests Of The Child, Joanna B. Strauss, Peter Strauss

Faculty Scholarship

Identifying just principles for minimizing and resolving disputes over child custody remains one of the law's knots. King Solomon's renowned gambit for resolving the claims of two women to a newborn child was in fact the easy case: only one of the two contenders had a just claim; only one of the two contenders was prepared to be responsible; and in that first of reported cases, the judge had the advantage of surprise. Yet where each potential custodian has a claim, where each is equally prepared (or unprepared) to sacrifice his interests for the child, and where the ...


Rules, Adjudications, And Other Sources Of Law In An Executive Department: Reflections On The Interior Department's Administration Of The Mining Law, Peter L. Strauss Jan 1974

Rules, Adjudications, And Other Sources Of Law In An Executive Department: Reflections On The Interior Department's Administration Of The Mining Law, Peter L. Strauss

Faculty Scholarship

Professor Strauss presents in this article a detailed case study of policymaking by the Department of the Interior in its administration of mining law. The antiquated nature of the General Mining Law of 1872, essentially unchanged since its enactment, has placed a great responsibility for "writing" the law of mining claims upon the Department, highlighting the problems that exist with the Department's internal allocation of its policymaking function.

The focus of this piece is a study of those problems and an examination of possible remedies. Professor Strauss criticizes, in particular, the inaccessibility of Department "law" and the Department's ...


Mr. Justice Douglas, Michael I. Sovern Jan 1974

Mr. Justice Douglas, Michael I. Sovern

Faculty Scholarship

The American people are always interested in record-breakers, whether it be in the field of sports, politics, economics or any other phase of American life. In sports, it might be a Babe Ruth or a Hank Aaron; in politics, a Lincoln or a Roosevelt; in economics, a Rockefeller or a Ford.

And so it is in the judiciary, whether it be a Marshall, Hughes, Holmes or Brandeis. Most of their records in some respects are related to longevity, but the thrust of our admiration stems not from that fact but from some great contribution to the affairs of their day ...


Professor Milton Handler, Michael I. Sovern Jan 1973

Professor Milton Handler, Michael I. Sovern

Faculty Scholarship

Milton Handler taught his first class at Columbia four years before I was born. Because of my parents' tardiness, he was beginning his twenty-sixth year on the Faculty by the time I was old enough to register for his course in Trade Regulation in the fall of 1953. I have been an admirer of Milton Handler ever since.

It has been my good fortune to know him in many ways. As a teacher, he was truly extraordinary – a penetrating analyst, a builder of grand syntheses, a master of the Socratic method. Though his courses were usually electives, most of our ...


Julius Goebel, Jr.: In Fond Recollection, Michael I. Sovern Jan 1973

Julius Goebel, Jr.: In Fond Recollection, Michael I. Sovern

Faculty Scholarship

Memorable teachers, like great delicacies, are not to everybody's taste. Most of us endured nineteen years of formal education, encountering perhaps 100 teachers along the way. Many were journeymen, imparting whatever information their particular slice of the curriculum warranted. A few, a very few, truly moved our minds. And, not uncommonly, the genius who made me see left others in the dark, while my friend's cicerone left me hopelessly lost. The teacher who dares to inspire will not inspire many, but if in every class a few are enabled to think in a way they could not think ...


Professor Paul R. Hays, Michael I. Sovern Jan 1972

Professor Paul R. Hays, Michael I. Sovern

Faculty Scholarship

When I learned that the Editors of the Columbia Law Review were planning to dedicate this issue to Paul Hays, I took an extraordinary step. I volunteered. It seemed to me that the occasion should not pass without a formal expression of thanks from the Dean of the School of Law and an informal acknowledgment of the personal debt I owe to Paul Hays.

The formal thanks, richly deserved, can be simply stated. A valued colleague, a brilliant scholar, an inspiring teacher – Paul Hays is all of these and the School he served for more than three decades is the ...


Dean William C. Warren, Michael I. Sovern Jan 1971

Dean William C. Warren, Michael I. Sovern

Faculty Scholarship

It would be virtually impossible, even if I were to preempt this entire issue of the Columbia Law Review for the purpose, to document fully the monumental contributions William C. Warren made to the Law School during the seventeen years of his deanship. I can hope only to touch lightly upon them, leaving the reader to admire the foresight, the energy, the generosity of spirit, and the long hours of dedicated effort which enabled him to accomplish so much.


Chief Judge Stanley H. Fuld, Michael I. Sovern Jan 1971

Chief Judge Stanley H. Fuld, Michael I. Sovern

Faculty Scholarship

There were Whiz Kids before McNamara, and never more than during the tenure of the late Thomas E. Dewey as District Attorney of New York County. Only thirty-three years old when he became special prosecutor for the investigation of organized crime in New York and thirty-five when he took office as District Attorney in 1937, Dewey surrounded himself with a remarkably talented group of young lawyers. Frank Hogan, for example, was thirty-five in 1937, Charles Breitel all of twenty-eight. Stanley Howells Fuld, who had graduated from the Columbia Law School one year after the District Attorney, was thirty-four. Nine years ...


The National Labor Relations Act And Racial Discrimination, Michael I. Sovern Jan 1962

The National Labor Relations Act And Racial Discrimination, Michael I. Sovern

Faculty Scholarship

When the United States Commission on Civil Rights completed its recent study of discrimination in employment, its findings began on the same depressing note sounded by virtually every student of the problem since the end of slavery:

[N]egro workers are still disproportionately concentrated in the ranks of the unskilled and semiskilled in both private and public employment. They are also disproportionately represented among the unemployed because of their concentration in unskilled and semi-skilled jobs-those most severely affected by both cyclical and structural unemployment-and because Negro workers often have relatively low seniority. These difficulties are due in some degree to ...


Delay And The Dynamics Of Personal Injury Litigation, Maurice Rosenberg, Michael I. Sovern Jan 1959

Delay And The Dynamics Of Personal Injury Litigation, Maurice Rosenberg, Michael I. Sovern

Faculty Scholarship

Delayed justice is one of man's stubborn maladies. Just as stubborn is' man himself, and this has led him to persist in prescribing for the delay affliction instead of trying to understand it. Today there are still those who believe that solution can precede understanding and that what this country needs is a good five-cent "cure" for delay. Happily, others have recognized the need to put first things first. All through the country more and more groups are at work methodically getting the facts that are essential to understanding what is wrong and what is needed. The Columbia University ...


"Public Policy" In The Conflict Of Laws, Monrad G. Paulsen, Michael I. Sovern Jan 1956

"Public Policy" In The Conflict Of Laws, Monrad G. Paulsen, Michael I. Sovern

Faculty Scholarship

In deciding a conflict of laws question, a judge will sometimes say, "The foreign law ordinarily applicable will not be applied in this case because to do so would violate our public policy." The textwriters, language in the cases, and the Restatement agree: the "normal" operation of choice of law rules is subject to a "public policy" limitation. This paper is an attempt to explore the meanings and significance of "public policy," used in this general way, in the conflict of laws.