Law Commons^™

The Bad News About Good Faith For Excess Um Carriers, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Implications Of The Tax Reform Proposals For Fraud – Or – How To Shift To A Consumption Tax Without Helping The Cheaters, Kalyani Robbins

Akron Law Faculty Publications

The vast majority of the proposals on the table today are simply different implementation mechanisms of the same basic idea: a change in the tax base from income to consumption. The purpose of this article is to consider the implications some of these proposals have for the enforcement of tax compliance (prevention of cheating). For this reason, it will only briefly address the impetus for a consumption tax and the policy considerations behind it. The first part will also give short descriptions of the proposals that will be considered in this article: the National Retail Sales Tax, the Savings-Exempt Income …

Framers' Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins

Akron Law Faculty Publications

One of the sources of the Court's inability to conduct proper constitutional analysis in military cases is its lack of access to complete and unbiased information upon which to base that analysis. In Part III, I will make an effort to suggest methods for addressing this problem alternative to simply letting the military use its special knowledge as a source of power over the Court. Part IV will demonstrate a modern example of where the problem of excessive deference can lead, and present the Court with a suggestion to use this as a context for change. Finally, the Article will …

Deposed Parties: Who Has A Right To Access Depositions In Civil Cases?, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Industrial Espionage As Unfair Competition, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

"And The Truth Shall Make You Free": Truth As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky

Akron Law Faculty Publications

Today, the depletion of salmon and steelhead fisheries in the Northwest United States is a concern not only to commercial fishers whose livelihoods depend on the resource but also to conservationists who fear the endangerment or extinction of the species. The implementation of a comprehensive approach to fisheries management could have reduced this threat of depletion. The federal courts had the opportunity to promote regulation and conservation of the fisheries in two cases, Sohappy v. Smith and United States v. Washington (Boldt), but failed to adopt an effective management model that would address the environmental concerns of the fisheries as …

Acting As Agent Under A Financial Durable Power Of Attorney: An Unscripted Role, Carolyn L. Dessin

Akron Law Faculty Publications

The financial durable power of attorney, also known as a durable power of attorney for property management, is a creature of fairly recent origin. The estate planning bar created it to provide an effective alternative to guardianship or conservatorship proceedings when people become incompetent or incapacitated. Additionally, there was a sentiment that the wealthy had an effective way of dealing with potential disability by creating a funded inter vivos trust, and that such a device was not available to most individuals because of the prohibitive cost. Since its creation, the financial durable power of attorney has become an extremely popular …

The Troubled Relationship Of Will Contracts And Spousal Protection: Time For An Amicable Separation, Carolyn L. Dessin

Akron Law Faculty Publications

We live in a society with rapidly changing familial norms. Statistics show that one out of every two marriages ends in divorce, and even higher divorce rates are projected. The number of people who remarry following a divorce also is increasing.

Much has been written about the effect of the changing family patterns on estate planning. In the era when having only one spouse and one set of children was the norm, it was fairly simple to develop a rational system for dividing the person's estate among spouse and children. In recent decades, however, the growing number of multiple marriages …

The Flexible Doctrine Of Spoliation Of Evidence; Cause Of Action, Defense, Evidentiary Presumption And Discovery Sanction, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes

Akron Law Faculty Publications

The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [[[Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times.

In the twentieth century, one of the most familiar articulations of differing views occurred …

Vexatious Litigation As Unfair Competition And The Applicability Of The Noerr-Pennington Doctrine, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Constricting The Law Of Freedom: Justice Miller, The Fourteenth Amendment, And The Slaughter-House Cases, Richard L. Aynes

Akron Law Faculty Publications

The Slaughter-House Cases are simultaneously unremarkable and extraordinary. They are unremarkable because the matter at issue -- whether butchers can be required to ply their trade at a central, state-franchised facility -- has long since ceased to be a matter of concern. They are extraordinary because in spite of the fact that three of the Court's significant legal conclusions have been rejected and “everyone” agrees the Court incorrectly interpreted the Privileges or Immunities Clause, the conclusion that the Privileges or Immunities Clause of the Fourteenth Amendment had no meaningful place in our constitutional scheme continues to live on. Even those …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Akron Law Faculty Publications

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

The Public Trust Doctrine: The Public Trust Doctrine And Takings: A Post-Lucas View, Martin H. Belsky

Akron Law Faculty Publications

During the last five years, the United States Supreme Court has evolved a new "takings" doctrine. Starting with Nollan v. California Coastal Commission and then most recently in Lucas v. South Carolina Coastal Council, the Court has sent a clear message to land-use regulators. General regulatory control over land-use will now be carefully scrutinized. If a type of land-use is barred or substantially restricted, it will be found to be a "taking" requiring compensation, unless such controls can be justified as based on historic common law principles of property law. This Article will review the evolution of this new doctrine …

On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Faculty Publications

Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “ ‘implicit in the concept of …

The Impeachment And Removal Of Tennessee Judge West Humphreys: John Bingham's Prologue To The Johnson Impeachment Trial, Richard L. Aynes

The 39th Congress Project

No abstract provided.

On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes

The 39th Congress Project

No abstract provided.

The Impeachment And Removal Of Tennessee Judge West Humphreys: John Bingham's Prologue To The Johnson Impeachment Trial, Richard Aynes

Akron Law Faculty Publications

At the beginning of the Civil War many individuals who held positions under the United States government submitted resignations which, in their minds, allowed them to assume positions with the so-called government of the Confederate States of America. One of the few individuals who did not do so, but nevertheless assumed a position under the Confederate States of America was U.S. District Judge West H. Humphreys. After the Confederacy was formed, he continued to hold court in the same courtroom but under the guise of a Confederate States Judge.

This presented two problems for President Lincoln and the Unionists. First, …

The Antislavery And Abolitionist Background Of John A. Bingham, Richard L. Aynes

The 39th Congress Project

No abstract provided.

Environmental Policy Law In The 1980'S: Shifting Back The Burden Of Proof, Martin H. Belsky

Akron Law Faculty Publications

This article will describe the legal and policy burdens of proof applicable to environmental decision-making and the shifts that have occurred in allocating those burdens. The initial change occurred when common-law principles gave way to a pro-protection legal framework established during an "environmental era." The second change occurred more recently when a new environmental policy law agenda was set. Through regulatory reforms, policy alterations, statutory proposals and budgetary and personnel actions, the federal executive is now seeking to develop a more pro-development structure and again place the burden of proof on those seeking to secure government action to protect the …

Review Essay On Becoming And Being A Prosecutor, Martin H. Belsky

Akron Law Faculty Publications

A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."

The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, …

Three Prosecutors Look At The New Pennsylvania Crimes Code, Martin H. Belsky, Joseph Dougherty, Steven H. Goldblatt

Akron Law Faculty Publications

On December 6, 1972, a new Crimes Code, was approved, to be effective June 6, 1973. The new Crimes Code is the first real legislative attempt since 1860 to codify the criminal laws of the Commonwealth of Pennsylvania. However, because of political realities, it is not a complete codification, but rather an attempt to restructure only those provisions found in the former Penal Code.

In the comments of the Joint State Government Commission, the drafters of the new Crimes Code sought to convince the legislature and the public that few substantive changes had been made., In fact, by the elimination …

Reapportionment In The 1970'S - A Pennsylvania Illustration, Martin H. Belsky

Akron Law Faculty Publications

In Commonwealth ex rel. Specter v. Levin, the Pennsylvania Supreme Court dismissed, in a four-to-three order and later opinion, challenges to a reapportionment plan for the Pennsylvania State Senate and House of Representatives prepared by the Pennsylvania State Legislative Reapportionment Commission. An appeal from that order and opinion was dismissed "for want of a substantial federal question" by the United States Supreme Court on October 10, 1972. A complaint under the Civil Rights Act challenging the reapportionment plan was later dismissed by a three-judge court on May 8, 1973. Thus ended this author's journey through the "political thicket" of reapportionment …

Diplomatic Immunity-Jurisdiction-Adequacy Of Service By Mail On Foreign Government Agency: Petrol Shipping Corp. V. Kingdom Of Greece, Ministry Of Commerce, Purchase Directorate (2d Cir. 1966), Martin Belsky

Akron Law Faculty Publications

Casenote: Petrol Shipping Corp. v. Kingdom of Greece, Ministry of Commerce, Purchase Directorate, 360 F.2d 103 (2d Cir. 1966).